District Nasik vs Namdeo Ganpat Gite
2012 Latest Caselaw 197 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                        APPELLATE CIVIL JURISDICTION
                     APPEAL FROM ORDER  NO.799 of 2008
     Ramesh Balaji Ekhande ...




                                                     
     District Nasik                              ..   Appellant
            Vs

     1. Namdeo Ganpat Gite                   )




                                                    
     2. PrabhakarKeru Borade
     3. KamlabaiNamdeo Borade               )
     4. SmtSuman Namdeo Borade
     5.DyaneshwarNamdeo Borade              )




                                 
     6.Ms.JayashriDilip Tarle
     7.Ms. Meena Kailas Waghmare
                     ig                     )
     8.Vasant Namdeo Borade
     9.Narhari Namdeo Borade               )
     10.Kum Seeta Namdeo Borade
                   
     11.Kum Mangal Namdeo Borade (Legal heirs
     of decd Namdeo Keru Borade)            )
     No.3 is natural guardian of Respt no.9 &11
     of Respt nos.8 & 10.                   )
     all Nos.1 to10 are R/o Panchak Jail Rd
      


     Borade Mala, Nasik Rd
   



                                            )
     12.Mrs Asha Shivajirao Sanap
     13.Parshuram Dagu Hagawane             )
     14.Bholaram Kanayyalal Todwala





     15.Vinayak Raghunath Ghursale          )
     16.Smt Pushpawati Bhikannappa Fattarphode
     17.Manohar Kacharu Jadhav              )
     18.Ashok Rambhao Jadhav
     19.Dattatray Vithoba Handge            )
     20.Vasant Rajaram Nagare





     21.Yeshwant Valu Jadhav                )
     22.Ishwarlal Ramprasad Karose
     23.Mrs Kalawati Narhari Salve          )
     24.Mrs Anuradha Ashok Jadhav 
     25.Suresh Pandharinath Kulkarni        )




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     26.Mrs Hirabai Desram Sirsath




                                                                                          
     27.Ramesh Rambhau Chandramore  )
     28.Ramesh Shivrak Mahale
     29.Janardhan Raghunath Gangurde  )




                                                            
     30.Dinkar Namdeo Jejurkar
     31.Gokul Madhav Sonar                  )
     32.Waman Pandharinath Kulkarni
     33.Udhav Tukaram Pawar                )




                                                           
     34.Proposed Vir Sawarkar Smruti Coop Hsg Scty  ...      Respondents
                             ....

Mr. R.A.Thorat a/w Mr.K.P. Mali for Appellant Mr.U.B.Nighot for Respondent no.1

CORAM : B.P.DHARMADHIKARI, J ig DATE: 17 th October,

.

ORAL JUDGMENT

1. Heard Mr.Thorat learned Counsel for the Appellant and Mr.Nighot for Respondent No.1.

2. A short contention of Advocate Thorat on behalf of the

Appellant (Original Plaintiff No.5) is that the impugned Judgment dated 17.3.2008 passed by the District Judge 3 Nasik in Civil Appeal

No. 125 of 1996 remitting the controversy back to the trial Court is perverse and shows total non-application of mind. He submits that the Appeal arises out Special Civil Suit No.57 of 1990 which has

been disposed of finally on 1.2.1996 after recording of compromise. Thus, against the compromise decree Regular Civil Appeal was not maintainable. He has taken the Court through the relevant provisions to substantiate his contentions. In alternative and only to

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demonstrate that the controversy is now rendered infructuous and

remand is only an empty formality, he has also invited attention of

the Court to necessary facts.

3. Learned counsel Nighot has submitted that Respondent No.1

is one of the Plaintiffs and Suit has been disposed of as compromised without consent of Respondent no.1 and after deleting him from the array of parties. His contention therefore is that decree in Suit is not

a Consent Decree so far as Respondent No.1 is concerned and as the

name of Respondent no.1 has been deleted from the array of parties as Original Plaintiff impliedly his grievance has been dismissed

without giving him necessary opportunity. He therefore, submits that even on that account, order of remand should not be interfered with.

4. The Suit was instituted by the proposed Cooperative Housing

Society through its Promoter and the aspirant members for Specific performance. There was an Agreement entered into by the land

owner with the Promoter and members on 31.3.1987 and out of total consideration of Rs.50,000/-, initially an amount of Rs.30,000/- was paid & on 8.4.1987, an amount of Rs.10,000/- was also paid. A

dispute arose and therefore on 15.2.1990 Special Civil Suit No.57 of 1990 came to be filed by the Plaintiffs jointly along with proposed Cooperative Housing Society seeking specific performance of that contract. During pendency of the Suit on 15.10.1995 the proposed

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Society has passed a Resolution and it decided to prosecute the Suit

and for that purpose gave Power of Attorney to one of the Plaintiffs

who is the Appellant before this Court. Earlier, said Power of Attorney was with Respondent no.1. Here it needs to be noted that Respondent no.1 here contends that his Power of Attorney has not

been terminated and he is also disputing the fact of passing of Resolution on 15.10.1995. However, these facts are not relevant at this stage for adjudication of the present A.O. Hence, no conclusive

findings on these aspects need to be recorded.

5. On 21.12.1995 Plaintiffs filed an Application seeking deletion

of the name of present Respondent No.1 as Plaintiff no.1 from the array of parties. They pointed out that the Resolution mentioned above and Power of Attorney executed in favour of present Appellant

and also demand of additional amount of Rs,18,000/- from each

member and its non-fulfillment by Respondent no.1. The trial Court has allowed that deletion and on the very same day Purshis for

Compromise was also filed. The said Purshis was also opposed by present Respondent no.1 by filing purshis at Exhibit 73.

6. According to Respondent no.1 deletion was sought on the ground that he had resigned but, no document to substantiate such resignation or its acceptance by any Resolution was filed. On 15.1.1997 Respondent no.1 sought his restoration back as Plaintiff

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but, that was rejected by an Order dated 25.1.1996. The Respondent

no.1 then sought stay of that order. But that was also rejected and

after all these developments on 1.2.1996 compromise came to be recorded.

7. Appeal filed by the Respondent No.1/Original Plaintiff challenging the decree passed in Special Civil Suit is under section 96 of C.P.C. in this background. The Appellate Court has allowed that

Appeal on 17.3.2008 by the impugned order and placed matter back

before trial Court.

8. A perusal of the impugned Judgment reveals the points framed by the Appellate Court for its consideration and its determination is as under :

                        Points                                                    Findings
             1.Whether the impugned compromise decree           Yes

was obtained by fraud and collusion as alleged?

             2.Whether this is a fit case to remit back ?             Yes
             3.What order ?                                   See final order

9. The Appellate Court has noticed that Plaintiff No. 5 claiming to be the General Power of Attorney Holder had filed an Application at Exhibit 67 under Order 6 Rule 17 C.P.C. on 21.12.1995 and while seeking leave to amend the pleadings also sought deletion of names

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of original Plaintiff Nos.1,6,8,12,18,19,26 and 31 under the pretext

that they had all resigned. Plaintiff no.6 is present Respondent no.1.

The Appellate Court had noticed the grievance that without calling for the say of concerned Plaintiff, the trial Court called for say by the Defendants and then Defendants' Counsel gave no objection and and

because of that no objection, amendment was allowed on 21.9.1998 itself. It has then noted that Compromise Purshis was also filed on that day. It noted the contention of present Appellant that he had

Power of Attorney and its attention was also called to a resolution

passed by the General body. The Appellant before the lower Appellate Court has informed there was no such reference to

resignation in Resolution produced. It has then recorded its reasons for allowing the Appeal and remitting the matter back to the trial Court.

10. The scope of the Appeal from Order is very limited and the parameters to be applied are akin to one under section 100 of C.P.C.

The Suit was filed jointly by several Plaintiffs. The proposed Cooperating Housing Society who was joined as Plaintiff no.1 in that Suit is even today is only proposed Housing Society. It has therefore

not become a legal person at all. It appears that for the said purpose to avoid any technical objection as it could have been otherwise a Suit by an unregistered Association of persons,the proposed members of the Cooperative housing society were also joined as

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Plaintiffs in individual capacity. The Plaintiffs therefore were

distinctly interested in reliefs to be granted by the trial Court. The

consideration of the Appellate Court shows that the Suit has been disposed of by the trial Court as compromised after deleting names of some of the Plaintiffs at the instance of remaining Plaintiffs. When

there was no legal person in existence, the Power of attorney executed in favour of one of the Plaintiff by others or then steps taken by some of the Plaintiffs could not have been presumed to be

valid against Plaintiffs who were opposing such steps.

11. The trial Court could have at the most disposed of the part of

grievances of Plaintiffs as compromised and the entire grievances in Suit could not have been disposed of.

12. In order to avoid this situation, it appears that the remaining

Plaintiffs sought deletion of the name of Respondent no.1 and other Plaintiffs and accordingly that was permitted. It is obvious that

name of Plaintiff No.6 i.e. present Respondent no.1 could not have been allowed to be deleted without his consent. In case majority demanded that his name should be deleted, & if he was not acting as

per wish of majority, at the most a step to transpose him as Defendant could have been taken. In that event the trial Court would have been required to find out nature of his grievances. Suit could have been split into two Suits. All this exercise is not

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undertaken by the trial Court. The Suit instituted by several Plaintiffs

as per Order I Rule 1 and 2 C.P.C. could not have been disposed of by

deleting name of Respondent no.1.

13. In view of this position, I do not see any jurisdictional error or

perversity in the approach of the Appellate Court. The Appellate court has rightly remitted the matter back to the trial Court for its proper consideration. Various questions which arose because of

deletion as sought need to be addressed to by the trial Court itself.

14. It is also apparent that in this situation act of the trial Court in

dismissing Suit of the Plaintiff indirectly because of compromise entered into by other Plaintiffs with landlord cannot be sustained. The Respondent no.1 (Plaintiff no.6) was not a willing party to

compromise. This is also apparent from the Application moved by

him on 25.1.1996 vide Exhibit 77 and 80. The decree passed by the trial Court therefore, cannot be presumed to be a Consent decree

against which an Appeal is barred under section 96 (3) of C.P.C. The said sub-section prohibits Appeal from decree which is passed by the trial Court "with Consent of the parties". Here, Respondent no.1 has

not given any such consent and at the time of passing of decree he was not party to the Suit and therefore this bar is not relevant.

15. Mr.Thorat in order to substantiate his stand had also invited

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attention to provisions of Order 43 Rule 1 of C P.C. However, it

appears that before 1976 Amendment to C.P.C. an Appeal against the

order of trial Court recording compromise was permitted. By 1976 amendment that clause has been deleted. Because of that deletion only simultaneously Rule 1-A has been added and in it the Law has

permitted non-appealable orders to be challenged when a substantive Appeal is filed against a decree. By way of further clarification there is sub-rule 2 which envisages Appeal against

decree passed in Suit after recording of compromise. In such an

Appeal the Appellant is permitted to contest the decree on the ground that compromise should not have been recorded. Therefore,

it clearly shows that Appeal filed by the Respondent no.1 under section 96 of CPC was legally tenable and has been rightly entertained by that Court. The Appeal was against a decree passed

in Suit after recording of compromise and he contested the decree on

the ground that compromise should not have been recorded.

16. In this situation as the matter has been rightly remanded back by the Appellate Court to the trial Court for its proper consideration, I find that no prejudice is caused to the parties.

17. During hearing, my attention has been invited to Order passed by the Appellate Court on 19.11.1997 directing the Respondents before it (Plaintiffs) to keep one plot reserved for Respondent no.1.

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This direction held the field till the Appeal was decided and matter was remanded back. Mr.Nighot submitted that even today plot is

vacant and kept reserved for the present Respondent no.1. Whether the plot is available or not is not very relevant at this stage. The lis presented before the trial Court in the year 1999 still survives and

need to be answered either way. It cannot therefore be said that due to passage of time the controversy is rendered infructuous. Remand

therefore, cannot be said to be an empty formality. No case is made out warranting interference by this Court. Appeal from Order rejected.

18. The Appellate Court has expedited the proceedings after remand. The time period prescribed therein shall begin to run after

this Judgment is communicated to the trial Court.

19. Parties before this Court are directed to appear before the trial Court on 26.11.2012.

Pending C.As disposed of as redundant.

(B. P. Dharmadhikari, J)