Bombay High Court
Ravindra Narottamdas Merchant vs Dadar on 23 November, 2012
Bench: Anoop V.Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 201 OF 2012
IN
TRUST PETITION NO.1 OF 2001
Ravindra Narottamdas Merchant
Indian inhabitant, residing at
Ravi Kiran, 27, French Road,
Opp. Chowpatty, Mumbai 400 007 .. Petitioner
V/s.
1 Niranjan Narottamdas Marchant
Indian inhabitant, residing at
Ravi Kiran, 27, French Road,
Opp. Chowpatty,
Mumbai 400 007
2 Kiran Narottandas Merchant
Indian inhabitant, residing at
Prashanti Nilayam,
Ambarwadi, Lonavla, Dist.Pune
3 Poonam R. Kapadia,
Indian inhabitant, residing at
Ravi Kiran, 27, French Road,
Opp. Chowpatty,
Mumbai 400 007
4 Vina N. Singh,
Indian inhabitant, residing at
Rasik Niwas, 4th Floor,
Fench Road, Opp. Chowpatty,
Mumbai 400 007
5 Nina Merchant,
Indian inhabitant, residing at
Sana Villa, 2nd Floor,
Parsi Colony, Flat No.17,
Bldg. No.712/718, Road No.4,
::: Downloaded on - 09/06/2013 19:25:31 :::
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Dadar, Mumbai 400 014 .. Respondents
....
Mr. Haresh Jagtiani, Senior Advocate with Mr. Abhijeet Shinde, Mr.
Anil D'souza i/by Mr. Anil D'souza for Respondent No.2 in support of
Notice of Motion.
Dr. Virendra Tulzapurkar, Senior Advocate with Mr. M. P. Vashi with
Mr.Abhishek Bharati for the Petitioner to show cause.
Mr. Sameer Vaidya for Respondents 1, 3 to 5.
....
CORAM : ANOOP V. MOHTA, J.
RESERVED ON : August 31, 2012/29/10/2012
PRONOUNCED ON : November 23, 2012
ORAL JUDGMENT :-
Heard by consent of the parties finally.
BACKGROUND:
2 Both the counsel made their respective submissions and the
matter was closed for orders on 31.08.2012. The parties were
directed to file written notes of arguments. However, as noted and
as there was no arguments made with regard to the Chamber
Summons and the Notices of Motions referred in last paragraph of
order dated 5 August 2005, the matters were listed for clarification
on this part; and for supply of copies; and for re-hearing as those
matters were not part of the main hearing. On 5 October, 2012 the
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time was sought to file the same and it was accordingly extended.
The Office was also directed to place all these Notices of Motions and
the chamber summon along with the main matter on 10.10.2012.
The time was sought again and accordingly the matter was
adjourned for 19.10.2012 for re-hearing.
3 The parties filed the additional compilations of documents.
The parties were also directed to file a short synopsis and written
notes of arguments revolving around these disposed of Notice of
Motions and the chamber summons. On 29.10.2012, re-heard
both the learned senior counsel appearing for the parties. No
specific and/or extra arguments were made. All have been relying
on the arguments already advanced orally as well as in writing.
4 Following are the prayers of the Notice of Motion
No.201/2012:
a) That this Hon'ble Court be pleased to call
for the records which contain the original order dated
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5th August 2005 as passed by his Lordship, Justice S.
U. Kamdar (as he then was) and affix the signature on
the same;
b) In the alternative this Hon'ble Court may
take on record the agreements that are signed by the
parties and their respective counsel appearing at the
relevant time on their behalf as a
compromise/agreement and an order/decree be
passed in terms of the same;
c) Pending the hearing and final disposal of
this Notice of Motion, the respective parties be
directed to maintain the status-quo of the trust
properties.
5 Certain events of the background litigations, as per the
Petitioner, dealt in Notice of Motion No.201/2012 in Trust Petition
No.1/2001, is as under:-
On 04/08/31, the grand father of the Petitioner Shri Jethabhai
Govindji registered/created a private trust by Deed dated 4.8.1931
under Sr. No.3204 of 1931, whereby he settled his properties for the
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benefit of his wife Jamnabai and his son Narrotamdas J. Merchant
for and during his life time and thereafter the properties were to be
devolved equally upon the two sons of Narrotamdas namely the
Petitioner and Respondent No.2.The property herein bearing C.S.
No.1524 on Girgaum Division with structures/buildings thereon was
one of the properties mentioned in the Trust deed besides several
others.
24.3.1935, Seth Jethabhai Govindji expired and the Trust
continued to be managed by the Suriving Trustee. Some time in
May, 1943, Narrotamdas Jethabhai, father of Petitioner (Ravindran)
was inducted as a co-trustee of the trust by then surviving Trustees.
Respondent No.1, Mrs. Niranjani N. Merchant, the Petitioner's
mother, was inducted as a co-Trustee of the Trust by the then
Surviving Trustees, some time in 1948. The Petitioner, who was and
is one of the beneficiaries, was inducted as a co-Trustee of the Trust
in October 1963.
On 12/12/97, the Petitioner filed Suit No.44 of 1998 for
removal of his father, Narrotamdas Jethabhai, as a Trustee for
allegedly committing blatant breaches and misappropriation of the
Trust properties by the gifts and by his Will, when he had only a life
interest therein. He had also claimed title to the Trust properties and
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denied the existence of the Trust. He used Trust funds to purchase
shares and securities and Lonavla property. On 8 October, 2000, the
Father of the Petitioner Seth Narottamdas Jethabhai expired. On his
death, Clause 5(b) and 14 and 1 of the said Trust on became
operative. The Trust properties were now required to be divided
equally between the two beneficiaries, the petitioner and Respondent
No.2 herein. The Petitioner filed Trust Petition No. 1 of 2001 for
distribution of the Trust Fund. By order dated 2 nd April, 2001, the
Court appointed the Petitioner and Respondent No.2 herein
(beneficiaries named under the Trust Deed) as joint receivers to take
charge of all the vacant premises of the Trust properties, to collect
the outstanding rents to be received from the tenant of the Trust
property. On 20 January, 2005, Chamber Summons No. 1006 of
2004 taken out by Respondents 3, 4 and 5, to add, as the parties in
the Trust Petition was dismissed. The following matters were listed
on the board of the learned Single Judge, on 5.8.2005.
(1)Trust Petition No. 1 of 2001
(2) Chamber Summons No.1342 of 2003 for amendment of Trust
Petition No.1 of 2001 taken out by the Appellant to incorporate
shares and Fds as Trust properties.
(3) Notice of Motion No.1198 of 2003 taken out by the Appellant in
Trust Petition No.1 of 2001 to permit the Petitioner and Respondent
No.2 as Receiver to create third party interest and to permit the
Petitioner to use the entire property, including 7 and 8 floors.
(4) Notice of Motion No.3707 of 2003 in Suit No.44 of 1998 taken
out by Respondent No.1 for modification of the order dated 2 nd April
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2001 by removing the petitioner and Respondent No.2 as joint
Receivers.
(5) Notice of Motion No.1185 of 2005 taken out by the Petitioner for
reimbursement of expenses.
(6) Notice of Motion No.1902 of 2005 in Trust Petition No.1 of 2001
taken out by Respondent No.2 for an order against the Petitioner to
deposit 50% of the value of the assets.
(7) Notice of Motion No.2411 of 2003 in Trust Petition No.1 of 2001
taken out by Respondent No.2 seeking relief for shifting to the 7 and
8 floors.
The learned Judge disposed of all the aforesaid proceedings by
order dated 5th August, 2005 (the impugned order) recording it as
consent order. It is the Appellant's case that there was no consent
given by him for passing the impugned order. The copy of the order
was received on 17.8.2005. The Appellant was took search but
found no Roznama on 22.8.2005. The Warrant of attachment was
served by the BMC (Bombay Municipal Corporation) on 26.8.2005.
The notices were received from the BMC dated 11 th November, 2005,
demanding tax arrears. The part of it paid by the Petitioner and
respondent No.2.
On 2 March, 2006, Notice of Motion No.668 of 2006 was
taken out by the Petitioner for recalling order dated 5 August, 2005
on various grounds, including denial to the consent order and its
contents. It was opposed by contesting party by the respective
affidavits in reply.
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6 Respondent No.2's advocate called upon the Petitioner to
appear before the 1st Assistant Master to settle the draft of decree.
The draft decree was also enclosed along with notice dated 15 th
February, 2006. The Petitioner had filed an ad-interim application in
Notice of Motion No.668 of 2006 on 8 th March, 2006 and asked for
stay of the consent order, which was rejected.
7 In view of the averments made in the affidavit in support of
the aforesaid Motion, the Court had directed to file an affidavit
stating the background and what transpired on the date when the
matter was discussed and the consent order was passed. As per the
order, Mr. U. J. Makhija, Advocate for the Petitioner filed an affidavit
on 17th April, 2006. The Petitioner had also filed his affidavit
accordingly. On 21st April, 2006, the learned Judge ((S. U.
Kamdar, J.) issued a show cause notice for contempt under Section
12(2)(b) of the Contempt of Courts Act.
8 On 14th June, 2006, a decree was drawn as per Rule 300 of the
Bombay High Court (Original Side) Rules, signed by the
Prothonotory and Senior Master, High Court Bombay. It was sealed
accordingly on 15th June, 2006.
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9 A Chamber Summons was taken out by the son and the
daughter of the Petitioner referring to consent order, on 4th January,
2007. By order dated 23rd January, 2007, the learned Judge
(Coram: Mrs. R. S. Dalvi, J.) rejected Notice of Motion No.668 of
2006 in which prayers were also made to set aside the impugned
order. An Appeal filed on 23 rd February, 2007 bearing No.197 of
2007 by the Petitioner against the same. On 15 th March, 2007, an
order was passed in Chamber Summons by the learned Judge
(Coram: Mrs. R.S. Dalvi, J.) referring to the decree passed
pursuance to the impugned order.
10 The Petitioner's mother, Respondent No.1 pursuant to the
warrant of possession took possession of 1 st floor of Ravi Kiran on
10th April, 2007. A Division Bench of this Court on 21st November,
2011, set aside order dated 23rd January, 2007, and granted a liberty
to the respondent to adopt suitable proceedings in accordance with
law before the learned Single Judge, as per the assignment.
11 The Petitioner/appellant, therefore, based upon the liberty
filed the present Notice of Motion on 11 th January, 2012. The
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contesting parties filed their affidavit and additional affidavit and
resisted the Motion and the averments made in supporting affidavit.
By reasoned order dated 9th April, 2012, the learned Judge (Coram:
Mrs. R.S. Dalvi,J.) rescued herself from the matter.
12 In this background, as directed by the Hon'ble the Chief
Justice, the present Notice of Motion listed for re-hearing.
As those Notices of Motions and chamber summons were also
disposed of, it is necessary to consider the reasons and reliefs they
had claimed therein. The additional written submissions on behalf
of Respondent No.2 as filed on 29.10.2012 gives the gist of the same,
which is reproduced as under:
"A. Chamber Summons No. 1342 of 2003
Chamber Summons No. 1342 of 2003 dated 15 September
2003 together with Schedule to Chamber Summons; filed by the
Petitioner, to bring back certain shares and the fixed deposits to the
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Trust properties as the same were purchased by the Trust Funds,
equal distribution of properties, seeking direction that monies be
deposited in Court.
B. Notion of Motion No. 1198 of 2003 : Dated 7 April
2003, filed by the Petitioner, that the joint Receivers being the only
beneficiaries of the Trust be permitted to create third party rights and
interest in the Trust properties. That pending the final disposal of
the Petition, the Petitioner be permitted to use the entire property
including the 7th and 8th floor.
C. Notion of Motion No.3707 of 2003 : Dated 16
December 2003 filed by Respondent No.1, the Court Receiver of High
Court Bombay be appointed as the Receiver of certain of the Trust
properties, Respondent No.4 (Additional Respondent) be restrained
by an order and injunction from parting with possession of Flat
No.6A of Ravi Kiran. The Petitioner and Respondent No.2 be
restrained from creating any third party rights in respect of the estate
of Mr. N.J. Merchant.
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D. Notice of Motion No. 693 of 2004: Dated 26 February
2004, filed by the Petitioner. Seeking direction that Respondent
No.2 sign necessary cheques as co-receiver for making payments to
the Petitioner in the present and in the future. Direct Respondent
No.2 to unblock the Joint Receiver's account with HDFC Bank so that
the rent can be deposited in the same.
E. Notice of Motion No. 1185 of 2005 : Dated March
2005 filed by the Petitioner. That the Petitioner be reimbursed for an
amount of Rs. 35,56,167/- being the expenses incurred by him for
protecting the Trust property, viz., Jethabhai Govindji Chowpatty
Trust.
F. Notice of Motion No.1902 of 2005 dated 7 th June,
2005 filed by Respondent No.2, seeking direction to deposit 50% of
the value of the assets, investments, shares and securities of
Merchant Management Systems Private Ltd and also almond
business.
G. Notice of Motion No. 2411 of 2003 dated July 2003,
filed by the Petitioner. That pending the final disposal of the Petition,
the Petitioner be permitted to use the entire property including the
7th and 8th floor.
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H. Notice of Motion No. 1474 of 2000 dated 28 th April
2000, filed by the Plaintiff/Petitioner. That the Consent Terms
signed between the Plaintiff and the Defendant on 15 th February
2000 be set aside. That the Suit be restored on file. Notice of
Motion No. 228 of 1998, No. 3546 of 1999 taken out in the Suit and
Chambers Summons No. 39 of 2000 be heard expeditiously."
The impugned consent order passed as alleged, on the basis of
submissions and representations made by the parties through their
respective advocates in the open court. The relevant words of the
first paragraph of the order are "by consent of the parties the
following order is passed." The case is that though the order was
pronounced in open court, but it was not signed. It was corrected in
chamber also. The reasons for the same are not on record.
15 It is contended by the learned senior counsel appearing for
Respondent No.2 that in consideration of the mutual understanding
and consent for distribution of the property as elaborated in the
impugned order, the Trust Petition was disposed of and so also all
the Notices of Motions and the chamber summons. There is no
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proceedings taken out for revival of these Notices of
Motions/chamber summons except the Notice of Motion in question.
The submission is again made that the decree recording disposal of
these proceedings was also signed, sealed and delivered as per the
applicable procedure.
16 The learned Sr. counsel Mr. Harish Jagtiani for the Applicant
Apart from the provisions of the Civil Procedure Code (CPC) and the
Bombay High Court (Original Side) Rules referred and relied upon
the following Judgments only:
(1) Haikiullah Haji Rahimutullah & Ors. Vs. MHADA, 1997
(1) Mh.L.J.
(2) Darayas Cawasji Balsara Vs. Shenaz Darayas Balsara,
AIR 1991 Bombay 175.
(3) Indian Council For Enviro Legal Action Vs. Union of
India & Ors., (2011) 8 Supreme Court Cases 161.
(4) Niyamat Ali Molla Vs. Sonargon Housing Cooperative
Soc. Ltd. & Ors. (2007) 13 Supreme Court Cases 421.
(5) Phool Kumari Vs. Nandu Ram AIR 2003 HP 75.
The relevant provisions of C.P.C. - unsigned, pronounced
Judgment/order & affixing a signature by the predecessor Judge
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on such impugned consent order :
SECTION 2(9) OF CPC is as under :
"2.(9)"Judgment" means the statement given by the
Judge on the grounds of a decree or order."
Section 33:-
Judgment and decree:- The Court, after the case
has been heard, shall pronounce judgment, and
on such judgment a decree shall follow.
SECTIONS 151, 152 OF CPC read as under :
"151. Saving of inherent powers of Courts. - Nothing in
this Code shall be deemed to limit or otherwise affect the
inherent power of the Court to make such orders as may
be necessary for the ends of justice, or to prevent abuse of
the process of the Court.
152. Amendment of Judgments, decrees or orders.-
Clerical or arithmetical mistakes in Judgments, decrees or
others or errors arising therein from any accidental slip
or omission may at any time be corrected by the Court
either of its own motion or on the application of any of
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the parties."
ORDER 4 RULE 2 of CPC reads as under :
"Register of suits.- The Court shall cause the particulars
of every suit to be entered in a book to be kept for the
purpose and called the register of civil suits. Such entries
shall be numbered in every year according to the order in
which the plaints are admitted.
O-20 R-1:-
[Judgment when pronounced:-
(1) The Court, after the case has been heard, shall
pronounce judgment in an open Court, either at once, or as
soon thereafter as may be practicable and when the judgment
is to be pronounced on some future day, the Court shall fix a
day for that purpose, of which due notice shall be given to the
parties or their pleaders:
Provided that where the judgment is not pronounced at
once, every endeavour shall be made by the Court to
pronounce the judgment within thirty days from the date on
which the hearing of the case was concluded but, where it is
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not practicable so to do on the ground of the exceptional and
extraordinary circumstances of the case, the Court shall fix a
future day for the pronouncement of the judgment, and such
day shall not ordinarily be a day beyond sixty days from the
date on which the hearing of the case was concluded, and
due notice of the day so fixed shall be given to the parties or
their pleaders.]
[(2) Where a written judgment is to be pronounced, it shall
be sufficient if the findings of the Court on each issue and
the final order passed in the case are read out and it shall not
be necessary for the Court to read out the whole judgment.]
[(3) The judgment may be pronounced by dictation in open
Court to a shorthand writer if the Judge is specially
empowered by the High Court in this behalf:
Provided that, where the judgment is pronounced by
dictation in open Court, the transcript of the judgment so
pronounced shall, after making such correction therein as
may be necessary, be signed by the Judge, bear the date on
which it was pronounced, and form a part of the record.]
O-20 R-2
Power to pronounce judgment written by Judge's
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predecessor.-
[A Judge shall] pronounce a judgment written, but not
pronounced, by his predecessor.
O-20 R-3
Judgment to be signed.-
The judgment shall be dated and signed by the Judge in
open Court at the time of pronouncing it, and, when once
signed, shall not afterwards be altered or added to, save as
provided by section 152 or on review.
O-20 R-8
Procedure where Judge has vacated office before signing
decree:-
Where a Judge has vacated office after
pronouncing judgment, but without signing the
decree, a decree drawn up in accordance with
such judgment may be signed by his successor or,
if the Court has ceased to exist, by the Judge of
any Court to which such Court was subordinate.
ORDER 23 RULE 3 and 3-A read as under :
"3. Compromise of suit.- Where it is proved to the
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satisfaction of the Court that a suit has been adjusted
wholly or in part by any lawful agreement or compromise
[in writing and signed by the parties, or where the
defendant satisfies the plaintiff in respect of the whole or
any part of the subject-matter of the suit, the Court shall
order such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance therewith
[so far as it relates to the parties to the suit, whether or
not the subject-matter of the agreement, compromise or
satisfaction is the same as the subject-matter of the suit];
[Provided that where it is allegedly by one party
and denied by the other that an adjustment or
satisfaction has been arrived at, the Court shall decide the
question; but no adjournment shall be granted for the
purpose of deciding the question, unless the Court, for
recorded, thinks fit to grant such adjustment.]
[Explanation.- An agreement or compromise which
is void or voidable under the Indian Contract Act,
1872 (9 of 1872), shall not be deemed to be lawful
within the meaning of this rule.]
3-A Bar to Suit. - No suit shall lie to set aside a decree
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on the ground that the compromise on which the decree is
based was not lawful.
ORDER 43 RULE 1-A(2) reads as under :
"1-A. Right to challenge non-appealable orders in appeal
against decrees.-
(2) In an appeal against a decree passed in a suit after
recording a compromise or refusing to record a
compromise, it shall be open to the appellant to contest
the decree on the ground that the compromise should, or
should not, have been recorded.
17 Respondent Nos.1 and 3 to 4 have also read and referred those
provisions and also relied on additional Judgments referring to the
interpretation of procedural law.
The respective submissions :
18 In the motion in question through the supporting
affidavit, the case is sought to be made out by the Appellant
(original respondent No.2) that the consent order was passed
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after hearing the parties and after taking suggestions of the
respective parties and their counsel, apart from their wish
and desire to settle the matter. Thereafter, in the open Court
the consent order was dictated and pronounced. It is
specifically averred that the order has taken into
consideration in great details the concerned properties and as
per the wish of the respective parties and the same have been
ordered to be distributed. Whenever it was not possible to
distribute the property, the certain compensation was
directed to be paid. At the relevant time in the Court, there
was no objection raised and in fact respective counsel co-
operated with each other to settle the disputes. It is
specifically averred that the consent order was uploaded on
the website of this Hon'ble Court and the duly authenticated
copy was also made available to the respective parties. All
the parties acted upon the consent orders and in fact has
been partly executed after following the due procedure of law.
19 The case is that on 21 November 2011 they came to
know that the impugned order was not initialled or signed by
the learned Judge, as he then was, after dictating and
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pronouncing it in the open Court. The order was affixed in
the record books, as duly certified copy was made available,
therefore, submitted that in the facts and circumstances, it is
only a ministerial act of signing and initialling of order dated
5 August 2005 is remained. The submission is also made
that such order once pronounced in the Court become final
and binding.
The averments and the submissions are also made that
the challenge was raised based upon various contradictory
grounds. The same was not accepted by the Court while
passing order on 21 November 2011, what remained was only
the ministerial act of signing and/or initialling the order by
the predecessor Judge. Alternative submission/ averment is
also made on the foundation that the written agreement
signed by the parties is on record which should be taken as a
valid and binding between the parties and by treating the
same as a consent terms, pass orders as prayed. The
averments are also for an appropriate interim order. The
challenge of any kind to the decree was also opposed.
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21 The other side has opposed this motion by filing
affidavit on various grounds including on merits. The
objection is that such motion is misconceived and not
maintainable. The reference is also made to the Notice of
Motion No. 668 of 2006 whereby the prayer to review the
trust petition, as well as, various interim applications taken
out therein. The averments are also made that they never
intended and did not settle the dispute as mentioned in the
order. The specific contention is raised referring to the
motion taken out by them that the alleged consent terms
never signed by the parties; at all and the same are against
O-23 R-3 of CPC; and will liable to be set aside. The
reference is also made to Order dated 23 January 2007
whereby the motion was dismissed. The Appeal was heard by
the Division Bench and by order dated 21 November 2011,
the liberty was granted to the parties to take out appropriate
application or motion before the learned Single Judge by
specifically observing that the Notice of Motion did not
survive as both the parties agreed that there was no signed
or initialled the impugned order. It is specifically contended
that there is no provision under the law whereby the party
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can insist that the order can be signed by any other Judge. It
is specifically averred that there is nothing to show that the
order was prepared by consent of the parties and/or there
was any lawful compromise or settlement as contemplated
under O-23 R-3 of the CPC. It is also averred that all these
contentions so raised by Respondent No.2 in the present
motion was considered and thereafter the Division Bench had
disposed of the appeal. There are averments made with
regard to the equal distribution of the properties, and of the
compensation. There is a denial with regard to the
cooperation of the parties, as well as, the counsel, as averred
by Respondent No.2. The denial is also made with regard to
the uploading of the order on the website and also that it was
duly certified by the High Court. The averments are also
made that partial execution of the order was illegal. It is
specifically averred that "in the eyes of law there is no order
at all because it is not signed by the Judge concerned.
Whether it was through inadvertence of otherwise, neither
the respondent No.2 nor any one can say anything about. The
learned Judge is no longer in office now." The averments
about certain disciplinary action against the officers of the
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department for allowing the execution without certified copy
of the order is also made. Ultimately, thereby opposed the
motion on all counts.
22 Affidavit in rejoinder dated 29 March 2012 filed by
Respondent No.2 and principally reiterated their case and it
is also contended that under O-23 R-3 the consent terms/
terms signed by the counsel/advocate are sufficient to pass
the order. The reference is also made to the fact that this
Court had passed the Judgment/ order on 15 March 2007
based upon the forcible possession of the first floor of Ravi
Kiran Building as taken by executing the warrant of
possession under O-21 R-35 and 36 of the CPC. This is again
based upon the order passed by this Court on 20 October
2006 in terms of the execution of the decree passed on 20
August 2005.
23 Additional Affidavit in support of Notice of Motion dated
29 March 2012 is filed by Respondent No.2. There reference
was also made to O-20 R-8 of the CPC and submitted that
the successor Judge required to sign the consent terms to
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avoid further delay and immense prejudice, so that the
proceedings can attain finality. The reliance is also made to
the contempt proceedings; and an unconditional apology by
affidavit dated 21 April 2006 was tendered by admitting the
fact that the order was dictated in the open court.
No provision to affix the signature by the successor
Judge on earlier pronounced consent order in open Court:
There is no provision in CPC to affix the signature by a
Judge who has not heard the matter and/or not dictated the
order and/or pronounced the consent Judgment or order in
open Court. There is no provision to pass consent
decree/order based upon the disputed terms/agreement
unless agreed by all the parties or in a given case by the
respective Advocate/counsel, apart from signatures by all
concerned, on such terms and conditions. The consent
decree/order can be passed only on agreed written terms or
unless consented and agreed to pass the order without
raising any objection and not otherwise. It is always
permissible for the parties, even if there is an order and/or
judgment passed, based upon the consent terms to point out
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and/or object to the alleged consent order or judgment, if
terms are not agreeable and/or not agreed or wrongly
recorded. The parties are, therefore, even as per the CPC
and/or otherwise entitled to raise the objection to any
consent terms/order. The remedies are available under the
law. Order 43, Rule 1A(2) of C.P.C applicable if the Judgment
and following the decree is duly signed by the Judge who
pronounced it.
25 The dictation in open Court cannot be treated as
judgment as pronounced Judgment/order, unless it is signed
and dated by the concerned Judge, there is no case for
affixing signature by anyone else or the Judge who has not
pronounced the order. The affixing of the signature go back
to the date of pronouncement and validate the
Judgment/order.
26 The Supreme Court in K. V. Rami Reddy v. Prema1,
referring to Section 2(9) and Order 20 Rules 1 to 8 has
observed as under :
"11 The ultimate question is whether in
1 (2009) 17 SCC 308
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the instant case the judgment has been validly
delivered? If it is a mere procedural irregularity
and the Judge concerned had not signed the
judgment, then the judgment thus rendered
cannot be invalidated. Order 20 Rule 1 CPC
postulates that after the case has been heard,
the Court hearing the same shall pronounce the
judgment in open court by dictation to the
shorthand writer, wherever it is permissible. It
bears the date on which it is pronounced. The
date of the judgment is never altered by the date
on which the signature has been put
subsequently. The mere fact that a major
portion has been dictated by the learned Judge
in the judgment already dictated, will not, by
itself, lead to the conclusion that the judgment
had been delivered.
17 Undisputedly, the trial Judge had not
completed the judgment before he delivered his
decision. That being so, the impugned judgment
does not suffer from any infirmity to warrant
interference. What the High Court has directed
is to hear only the arguments afresh. While
dismissing the appeal, we direct that the
arguments shall be heard afresh and the trial
court shall deliver its judgment as early as
practicable, preferably within three months from
today. To avoid unnecessary delay, let the parties
appear before the trial court on 5-3-2008 so that
the date for arguments can be fixed."
27 Admittedly, in the present case, the impugned order was
pronounced in open Court in presence of the parties, as well
as, the counsel. There were corrections made in the
Chamber also, but it remained unsigned. The objection was
raised about terms referred in the impugned order including
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the distribution of the property. Those objection itself means
unagreed terms/conditions so put in the order. The parties,
therefore, filed affidavit raising the various objections
including the way in which the order was passed. Both the
counsel have raised and referred those affidavits and
pointed out how the impugned order is final and binding;
and the case of the other side is that it is not binding and
cannot be treated as the consent order and/or terms.
28 Admittedly, this is not the case where the parties after
signing the consent terms submitted and requested the Court
to pass decree on it. There is no denial that no-one has
signed any terms and conditions at any point of time on the
basis of which authoritative pronouncement cannot be made
that the consent terms/order so passed was based upon
written and signed consent terms by the third person or other
Judge. The tenure of the order so passed itself shows that
after hearing the counsel and the parties, the earlier learned
Judge, has accepted and recorded the suggestions and the
terms and passed the order. One side is objecting to the
same even on merits. It is relevant to note that any
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judgment cannot be read as statute in every circumstances.
It is not a simple case of passing and/or pronouncement of
judgment by the Judge, after hearing the matter. The case is
no pre-written and signed consent terms, but recorded in the
order after due discussions, and given effect also. The decree
was drawn and to the some extent it was executed also. The
challenge has been still made to the impugned order in every
aspect. The review against the order was also taken out as
the aggrieved party not ready to accept the contents of the
order. But rightly, for want of the signature on the
pronounced consent order the matter was disposed of by the
Division Bench with liberty. No signature; no final
judgment/order. This itself means, no question of drawing
any decree and execution of it. Everything should collapse.
29 Considering the facts and circumstances, as well as, the
averments made in the present Motion, read with the prayers
so made, the scope is quite limited. There is no question
going beyond the prayer clauses so raised/made by the
Applicant of the Motion.
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30 Admittedly, by the impugned order suggestions and
terms were recorded in open Court and treated as
pronounced in open court. It remained unsigned, even after
correction. It appears that all the parties including office
were under impression that it was duly signed as it was
uploaded on the internet also. Everyone acted upon the
basis on presumption that it must have been signed by the
Judge who has pronounced the order in the open Court, after
correcting it. At this stage, I am not inclined even to consider
the objection and/or reason that how even the Court officer
can draw decree as per the Rule 300 of the Bombay High
Court (Original Side) Rules and sealed it without verifying
and/or without having certified copy of the signed order of
the Judge. This undisputed position itself means the decree
was drawn based upon the unsigned but the pronounced
order. The decree should be drawn as per the signed
Judgment only. The Judgment itself means that a Judge
who has heard the matter, has pronounced the judgment and
put his signature and date accordingly. Such judgment only
takes effect as per the CPC. Even assuming for a moment
that O-20 R-1,2 and 3 and the procedure so laid down are of
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directory in nature and/or that it would not and/or should
not read to mean mandatory and/or any irregularity of such
nature are curable, but in the present facts and
circumstances, considering the background of the matter and
way in which the matter was alleged to have proceeded from
stage to stage and as there are various objections raised with
regard to the procedure and the way in which the impugned
order was passed and also the merit of the same, this aspect
according to me are relevant to be decided first before
accepting the submission so raised by the learned senior
counsel appearing for the Applicant in support of the motion.
Both the parties are not in agreement for the Judge to sign or
affix the signature on impugned order. The subsequent
Judge cannot overlook the objection so raised on all counts.
Controversial facts and circumstances lead to consent
order:
31 The learned counsel appearing for Respondent No.2
referring to the documents and the Judgments, submitted
that following circumstances are sufficient to establish that
the order was passed by consent.
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"i) Certified copies issued to parties.
ii) Consent Order uploaded on the website of the
Bombay High Court;
iii) Originals of the order pasted in the minute book
[as confirmed by Justice R.S. Dalvi in order
dated 9th April 2012];
iv) The records of the court and particularly
affidavits filed by respective parties and their counsel
[Affidavit of the Petitioner dated 21st April 2006 at Page
No.44, Affidavit of Petitioner's Counsel dated 17th April
2006 at Page No. 46, Affidavit of Respondent 1's
Counsel dated April 2006 at Page No.56 and Affidavit
of Respondent Nos. 4 to 6's Counsel dated April 2006
at Page No.62 - of Additional Affidavit of
Respondent No.2]
v) Decree drawn up in accordance with the Bombay
High Court Original Side Rules [Page No.9 of
Compilation of Orders/Documents];
vi) Judges' Order passed for execution and taking
possession of the 1st floor by the Respondent No.1
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pursuant to the provisions of the Consent Decree;
vii) Affidavits [as described for in paragraph 2(iv)
above] filed by all the parties pursuant to the order
of Justice S.U. Kamdar directing the parties to file
affidavits stating as to what transpired in court on 5 th
August 2005 and prior thereto and their respective
Counsel appearing for the rival parties have in no
uncertain terms confirmed the fact of the passing of
the Consent Order;
viii) The Petitioner took out a Notice of Motion No. 668
of 2006 [Page No.1 of Volume 1] in which he has
sought to set aside the order dated 5th August 2005.
ix) The Petitioner appealed against the rejection of
the Notice of Motion No. 668 of 2006 and in the
appeal memo he has once again challenged the
order dated 5th August 2005 treating the same as an
order of the Court [Order in Appeal at page No.1 of
Compilation of Orders and Documents].
x) Parties have acted pursuant to the Decree and
altered their positions irretrievably.
None of the above procedures/events were possible or
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permissible in law had the order of 5th August 2005 not
been a Consent Order passed by the Court."
32 The conduct was also referred by the Applicant in the
following words:-
"9) It is quite obvious that the Petitioner is
clutching at straws by contending that the order
dated 5th August
ig 2005 was not passed by the
Court with the consent of all parties. The
Petitioner's conduct in this regard cannot be
ignored namely:
i) to wriggle out of the said order he first blames
the court by alleging that the learned Judge
pressurized him into giving his consent;
ii) when faced with contempt proceedings at the
instance of the court (still pending) he retracts
by saying that he was pressurized by his lawyers;
iii) he then challenges the said order by wrongly
moving the same court to have it set aside.
When this challenge fails he appeals to the Appeal
Court. All along in his pleadings he refers to the
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said order as a 'Consent Order';
iv) when pursuant to the Appeal courts order, the
matter is agitated at the instance of
Respondent No. 2 before Justice R.S. Dalvi, the
Petitioner files a praecipe belatedly questioning the
Ld. Judge's propriety in hearing the case. This
caused the Ld. Judge to recuse herself from the
case [Order dated
ig 9th April 2012 tendered across
the Bar]."
33 The learned senior counsel Dr. Virendra Tulzapurkar
opposing the Motion, has also read and referred various
documents to point out the merits/the contents of the order
and the way in which impugned order was passed or alleged
to have been passed, to justify their submission that it was
never be treated as consent order and/or judgment as it was
never finalized and signed by the parties or their Advocates
prior to the dictation of the order in open court and/or even
thereafter.
34 The contention was raised that this cannot be treated
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even as a Judgment as contemplated under Section 2 (9) of
CPC.
35 The learned Senior counsel appearing for the Applicant
in support of the motion read and referred and made their
submission referring to the conduct, as well as, the
documents on record to show that, in the present facts and
circumstances as both the parties have actually acted upon,
now cannot be permitted to deny the consent terms and
therefore, what remains is that this Court to affix the
signature so that the matter can proceed further. This rival
contention itself means that the Court before signing/affixing
the signature, as prayed, required to decide and/or
reconsider the rival contention on merits of the matter also.
This itself means there is dispute and/or objection of various
kinds even on merits of the matter. It is not a simple case of
affixing of the signature on a pronounced judgment/order by
a predecessor Judge because, as noted the parties are still
objecting and not willing to give any consent for affixing such
signatures. The Court, therefore, as no provision is pointed
out and considering the averments made and the scope of
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notice of motion and the prayers so raised, will not be in a
position to adjudicate the same. The remedy is due trial by
the Court on the due proceedings if initiated. The scope in
the averments so raised is totally limited and therefore, I am
not inclined to accept the case of the learned senior counsel
Mr. Jagtiani appearing for the Applicant in support to pass
order as prayed in terms of prayer clauses. However, as I am
not in position to adjudicate any merits of the contentions so
raised by the parties, there is no question of deciding the
same in this proceeding. The remedy is elsewhere. These
observations are only for deciding this matter.
No question of signature by the predecessor Judge as it
was not pronounced by him.
36 It is relevant to note there cannot be any dispute that all
the rules, procedures are hand made of justice. But still all
these commercial facts unless decided, the affixing of
signature by the predecessor Judge as contended is
impermissible. Such affixing of the signature will not make
the Judgment/order binding as per the C.P.C. Itself in the
circumstances.
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37 The reliance is made by the learned counsel appearing
for the Applicant in support of their motion on the various
provisions of CPC, specifically O-20 R-1,2 3 and 8 read with
Sections 151 and 152 of the CPC by referring to the
judgments, in my view, are of no assistance. There is no
direct provision under the CPC by which the predecessor
Judge shall and/or bound to affix the signature in such
matter and in a situation where the earlier Judge, after
hearing both the parties, in the open Court recorded certain
consent terms and dictated the order and/or pronounced the
impugned consent order. The situation so contemplated
under O-20 R-1, 2, 3 and 8 are totally different.
38 The invocation of provision of Sections 151 and 152 and
such other provisions, are also of no assistance. The
procedure and the concept of signed judgment as
contemplated under Section 2 (9) (14), Section 33, O-20 R- 1
to 8 and O-23 of CPC, itself prescribed and provided what
can be treated as a final and binding consent Judgment
and/or order. Once it is signed after pronouncement, even
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the Judge cannot altered the Judgment/order without the
application and/or procedure as prescribed under the law, by
the parties and by giving notices to the concerned
person/parties. This itself contemplates that the dictation
and pronouncement of judgment/order in open Court itself is
not sufficient to proceed by any person concerned by treating
the same as valid Judgment and/or order as contemplated
under the law unless signed by the concerned Judge,
subject to the correction and/or addition if any in chamber
or in Court, if typed and made available in the open Court.
The office also just cannot rely and/or proceed on the basis of
such open Court pronouncement of judgment and order
unless it is duly signed and dated by the concerned learned
Judge. If it is not signed, I am inclined to take a view that
such order and judgment cannot take effect specifically when
the situation like this where a party is objecting even on
merit of the impugned order as recorded above. It is the case
where both the parties, though there was no signature at the
relevant time and proceeded further, even partially, yet not
ready and willing to give their consent to treat the consent
order to be the consent order/Judgment. No one can compel
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them to do so.
To sign the consent Judgment/order is no ministerial
act. All stages are interlinked and important.
39 It is settled that even if there is a consent order and/or
decree, in a given case a party can invoke appropriate
proceedings to challenge the same. There is no bar. The
provisions so read and referred by the learned counsel
appearing for the parties in support of the motion shows and
contemplated the existence of the signature after
pronouncement of order/Judgment by the Judge. Even
assume for a moment that O-20 R-1,2,3 and/or similar
procedures are not mandated and/or directory in nature, still
in a situation like this, when the parties are not willing to
accept the consent order after having knowledge about the
missing signature of the Judge, who has pronounced the
order, I am not inclined to accept, as rightly contended by
the learned senior counsel appearing for the Petitioner
opposing Respondent No.2's motion, that affixing signature
by other Judge once the Judgment is pronounced in the open
Court by another Judge, is not a mere formality and/or
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ministerial act in the present facts and circumstances of the
case.
40 In view of above, it is necessary to note that the
Judgments so cited by the learned counsel appearing for
Respondent No.2, as quoted above, are of no assistance,
considering the facts and circumstances of the case. The
provisions of law so referred and decided in those judgments
and even otherwise, need no further discussion. All the
judgments so cited in no way deal with the aspects like this.
The subsequent Judge/ predecessor, in such circumstances,
in my view, and as no specific provisions referred and pointed
out, signed/affixed such impugned consent order, stating it to
be mere formalities and/or ministerial act. Those cases are
distinct and distinguishable on facts itself.
The litigants should not suffer - only the valid and
binding order binds all.
41 There cannot be dispute with regard to the proposition
that no litigants should be prejudiced by an act of the Court.
Section 152 of CPC empowers to correct its own error in
judgment/decree and/or order from any accidental slip
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and/or omission. The Court, therefore, in the facts and
circumstances can invoke inherent power and pass such
order in the interest of justice. In the present facts and
circumstances, however, as there are serious disputes with
regard to the various aspects including contents/merits of
the consent terms and also the manner in which the consent
terms was prepared and pronounced in open Court and as
those averments as required detailed trial and inquiry, I am
declined to invoke even the inherent power as sought to be
contended in support of the motion.
42 It was partly executed also. The legality and validity of
the consent order dated 5.8.2005 , just cannot be gone into
in this proceeding, but fact remains that the binding decree
should follow the signed Judgment. But in the present case,
admittedly, the judgment/ order if also signed, there was no
question of preparing the decree by the concerned officers as
provided under R-300 of the Bombay High Court (Original
Side) Rules, on the basis of authenticated copy or without
verifying the actual signed copy of the Judgment and/or
certified copy of the Judgment. The decree if prepared and
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proceeded, that itself cannot be the reason now to affix the
signature as prayed in the present motion. I am not inclined
to accept, in the present facts and circumstances, that this is
just a mere ministerial formalities. The Judge /predecessor,
cannot sit and/or decide the impugned order on its merits as
an Appellate Court.
43 So far as the prayer clause (b) is concerned, in view of
above, and as there is a serious dispute with regard to the
consent terms in writing and/or not in writing. Admittedly
the Judgment was pronounced after taking suggestions from
the counsel/parties present in the Court, this itself means
the terms and conditions were not crystalized finally, but it
were under discussion and the Court accepted the
suggestions and recorded the order in the open Court which
was subject to corrections and in fact remained to be signed.
Assume for a moment that the judgment/order was
pronounced in the open Court after taking suggestions from
the parties/ counsel, yet, unless both the parties accept the
consent terms and unless the learned Judge who has
dictated in the open Court, signed the same, I am not
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inclined to accept that such consent terms/ order can be
stated to be final and binding written consent terms.
Therefore, the Predecessor Judge has no option but to
sign/affix the signature. It was admittedly not signed by the
parties or the Advocates after recording of the terms and nor
even by the Judge. Therefore, there is no question of granting
any relief, as prayed in terms of prayer clause (b) also. In
fact, it is contradictory and inconsistence with the basic
averments and the other prayer clause itself. If there are
consent terms on record as per the Applicant and the decree
was passed accordingly, there is no question of passing a
fresh decree and/or order based upon the alleged terms and
conditions.
Caution Notice for office - uploading - drawing decree.
44 A computer generated copy needs no signature to act
upon. The inter-net and the computer technology and it's
related aspects work on modern technology. It is governed and
controlled by particular law and regulations and related
instructions. The uploading of any order/judgment by the
concerned is subject to due verification, authentication and
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instructions, apart from original signed judgment/order. Unless
it is duly signed, there is no question of uploading on High
Court inter-net site. Once it is uploaded, the presumption is
that the computer generated copy is like original signed copy.
The concerned in-charge/officer therefore just cannot upload
the uncorrected, unsigned orders/judgment. The
pronouncement of order/judgment on the date is one stage. It
follows by typing/transcription by the Steno/typist. After
correct, some deletion or addition of the words & lastly the
signature of the Judge. This makes the complete
written/pronounced judgment. Therefore, the pronouncement
in open Court, that itself, cannot be the signalled to proceed
with the execution of the order, or drawing of decree, unless
and/or specifically directed and/or specially permitted. The
learned Judge was available for long time. The contempt
notices were issued by the same Judge on this issue itself. No
steps taken to get lacuna removed/corrected at the relevant
time.
45 Therefore, taking over all view of the matter, the present
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Notice of Motion is dismissed. No costs. The parties still at
liberty to settle the matter, as dispute is between the family
members.
46 The learned counsel appearing for Respondent No.2 (the
Applicant), considering the fact that order dated 5 August
2005 has been in force till date and the decree was also
drawn, apart from execution proceedings initiated, submitted
to stay the effect and operation of this order. In view of this, I
am inclined to stay the effect and operation of the order
passed today for six weeks.
(ANOOP V. MOHTA, J.)
