Bombay High Court
Apollo Shop vs Shri Ravindra Jagannath Patil on 18 October, 2013
Bench: Anoop V. Mohta
1 ao.610-2012
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 610 OF 2012
WITH
APPEAL FROM ORDER NO. 611 OF 2012
WITH
CIVIL APPLICATION NO. 798 OF 2012
ig WITH
APPEAL FROM ORDER NO. 612 OF 2012
WITH
CIVIL APPLICATION NO. 796 OF 2012
M/s Mahavir Associates
a partnership firm registered under Indian
Partnership Act, 1932 having its office at
Apollo Shop, Lodha Paradise,
Off. Eastern Express Highway, Majiwade
Flyover, Majiwade, Thane (West). ..Appellant.
Vs.
1.Shri Ravindra Jagannath Patil
Adult, Occu: Business
R/at: Village Morva, Bhayandar (W),
Tal. & Dist. Thane.
2.Shree Sanjay Narayan Patil
Adult, Occu: Business,
R/at: Valiv, Tal Vasai & Dist. Thane
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2 ao.610-2012
3.Krishnabai Raghunath Patil
Adult, Occ: Household
R/at Kashi, Tal & Dist. Thane
4.Smt. Ratnaprabha Ravindra Patil
Adult, Occ: Household
5.Jayesh Ravindra Patil
6.Dakshta Ravindra Patil
7.Vidhi Ravindra Patil
(being minor through No.1 being
father and natural guardian
R/at: village Morva, Post B
Bhayandar (W), Tal & Dist. Thane
8.Smt. Sangita Sanjay Patil
Adult.Occ.: Household
9.Tajas Sanjay Patil
10.Nitali Sanjay Patil (Minor)
(being minor through No.8 being
mother and natural guardian
R/at Village Valiv, Tal Vasai, Dist.Thane
11.Smt.Jayamala Kishor Patil
Adult, Occ: Agriculturist
12.Shri Kishor Keshinath Patil
Adult, Occ: Agriculturist
13.Siddharth Kishor Patil (Minor)
14.Abhishek Kishor Patil (Minor)
(being Minor through No.12 being father
and natural guardian) R/at: village Morva
Post Bhayandar (W), Til. A Dlat. Thane
15.Shri Mahendra Raghunath Patil
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3 ao.610-2012
Adult: Occu-Business.
16.Smt.Asha Mahendra Patil
Adult, Occ-Household
17.Viva Mahendra Patil (minor)
18.Om Mahendra Patil (Minor)
(being minor through no.16 father
and natural gurdian R/at Village
Kashigaon, Post. Mira Tal & Dist.Thane
19.Smt. Priya Hemandra Patil
Adult. Occ-Household
20.Shri Hemendra Bhalchandra Patil
Adult. Occu-Agriculturist
21.Aryan Hemandra Patil
being minor through No.19 being
mother and natural guardian, R/at
Tulsi Vihar, Axer Road, Borivali (W)
Mumbai-400 103. ..Respondents
(Orig. Plaintiffs)
22.Meera Developers Pvt.Ltd.
Company duly registered under the provisions
of Indian Companies Act, 1957 having its
office at Nanadham Industrial Estate,
Marol Maroshi Road, Andheri (East)
Mumbai. ...Respondent
(Orig. Defendant No.1.)
Mr. Janak Dwarkadas, Senior Counsel with Mr. Vineet Naik, Senior
Counsel a/w Mr. Rahul Dwarkadas, Ms. Prachi Dhanani and Ms. Atika Vaz
i/b M/s Wadia Ghandy & Co., for Appellant in AO No.610/
2012,611/2012 & 612/2012.
Mr/ Anil C. Singh, Senior Counsel i/b Mr. Sandesh D. Patil, for
Respondent Nos.1 to 21 in AO Nos.610 & 612 of 2012.
Mr. Vijaysinh Thorat, Senior Counsel i/b Mr. Sandesh D. Patil for
Respondent Nos.1 to 21 in AO No.611 of 2012
Mr. Cyrus Ardeshir i/b Ganesh & Co., for Respondent No.22 in All AOs.
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4 ao.610-2012
CORAM : ANOOP V. MOHTA, J.
DATE : 17/18 OCTOBER 2013.
ORAL JUDGMENT:-
Rule made returnable forthwith. Heard finally, by consent of
learned Counsel appearing for the parties.
2 Since there are common facts and issues, so also arguments
are revolving around the same subject and as the Trial Court has passed a
common order, hence this common judgment.
3 The Appellant ( Defendant No.6) being aggrieved by the
order below Exhibit-5 in all Suits, dated 9 May 2012, passed by the 2 nd
Joint Civil Judge, S.D., Thane, filed these separate Appeals. The operative
part of the impugned order as as under:
"1.Every application, Exh.5, in Spl.Civil Suit No.200/2012,
201/2012 and 202/2012 is allowed.
2.All the defendants of above said respective suits are hereby
restrained, temporarily, from entering over the respective suit
property, till the date of decision of these respective suits.
3.All the defendants of above said respective suits, are
restrained, temporarily, till the date of decision of these
respective suits from creating third party interest in any of the
portion of the respective suit properties of the above said
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5 ao.610-2012
three suits.
4.Costs of these applications shall abide by ultimate result of
these suits.
5.Copy of this order shall be kept in each of the abovesaid 3
suits.
6.Copy of this order shall be kept in each of the abovesaid 3
suits.
4 Admittedly, the prayers in the Suits filed on 14.3.2012,
though properties are different, are common. The prayers (a),(b), (c) and
(d) are as under:
"(a) It may be declared that the suit agreement dated
2.3.1989 which stood modified and altered by a
supplementary agreement dt:2/2/1990 executed by and
between the Plaintiff as a Vendor and Defendant No.1 as
Purchaser in respect of the suit property which is duly
registered in the office of Sub-Registrar of Assurance on
12.0.2.1990 stands cancelled, ineffective and not binding
upon plaintiff.
(b) It may be declared that the suit agreement dated
19/6/1992 which was entered into between the defendant
no.1 as vendor and defendant no.2 as a Purchaser in respect
of the suit property is illegal, bad in law, ineffective and not
binding upon the plaintiff.
(c) The Consent Decree dt:3/11/2007 passed in Sp.Civil
Suit No.662/1994 be set aside and be declared that it is not
binding upon the plaintiffs.
(d) It may be declared that the Power of Attorney
dt:3/11/2007 executed by the plaintiff in favour of the Mr.
Mangalprabhat Lodha and Mr. Bharat K. Shah of Defendant
No.2, which is registered with the Sub-Registrar of Assurance
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6 ao.610-2012
Thane 2 at Sr. No.1100/2007 is revoked, cancelled and not
subsisting."
5 The separate applications were filed for the interim injunction
and granted by the learned Judge. The prayer clause (c) itself shows that
Plaintiffs-Respondent Nos.1 to 21 have challenged the consent decree
dated 3 November 2007 passed in Special Civil Suit No.662 of 1994 and
prayed to set aside the same and so also the power of attorney dated
3.11.2007. The prayer clauses (a) and (b), admittedly for the transactions
based upon agreements dated 2.3.1989, 2.2.1990 and 19.6.1992. There is
no dispute that all those transactions revolving around the properties in
question and ultimately settled by and between the parties through the
consent decree. The Plaintiffs' averments have the foundation of
"misrepresentation", "unlawful", for all the prayers and also "against the
public policy for want of permission" referring to Section 43 of Bombay
Tenancy And Agricultural Lands Act, 1948 (for short "B.T. & A.L. Act").
So far as other two suits are concerned viz. Suit Nos.201 of 2012 and 202
of 2012 (AO No.611 of 2012 & AO No.612 of 2012), the issue of such
permission is not raised.
6 At the threshold, it is necessary to consider and as submitted
by the learned senior counsel appearing for the parties, the mandate of
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7 ao.610-2012
Order 23 Rule 3-A of Code of Civil Procedure, 1908 (for short" CPC")
which is reproduced below:
"3-A Bar to suit- No suit lie to set aside a decree on the
ground that the compromise on which the decree is based
was not lawful"
The term "not lawful" though not specifically defined in the
Section, but the explanation to Rule 3 of Order 23 provides it.
"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."
There is no bar that parties cannot challenge any decree
and/or order, if it is unlawful and/or on a foundation of fraud and/or
misrepresentation. But in cases like this where the parties entered into
written compromise in accordance with law at the relevant time and even
proceeded and acted upon the same by filing the consent terms which
ultimately resulted into consent decree, the separate provision and
procedure need to be followed by all.
7 Admittedly, the Plaintiffs have filed these separate suits and
praying to set aside the consent decree on the ground that
compromise/consent decree passed, is not lawful. The term lawful
7 / 31
8 ao.610-2012
and/or not lawful need to be tested on the foundation of averments made
in the plaint, apart from the correspondences and the conduct by and
between the parties. There is no denial to the existence of compromise
decree. The plain reading of the averents, so also the contentions raised
by the senior counsel appearing for the Plaintiffs-Respondent Nos.1 to 21
by referring to terms and clauses of the consent decree confirms the
foundation of their challenge. The submissions are also made for various
purpose to show that the consent decree is contrary to law, not acted
upon, no possession was handed over, reciprocal obligations were
required to be complied with. For want of statutory permission it cannot
operate as the conveyance of the suit property. Full payments were not
made. The consent decree was not validly made for and on behalf of the
then minor respondents, who therefore can file such suits.
8 The conduct of the Plaintiffs is also necessary to consider at
this stage, basically when the Suits are filed after practically more than
five years from the date of consent decree. There was no objection of
whatsoever nature after the consent terms. The power of attorney holder,
admittedly even permitted to/apply for the necessary permission. The
letters exchanged by and between the Advocates for balance amount of
Rs.1 Crore together with interest, no way shows any objection to the
8 / 31
9 ao.610-2012
consent terms in the sense of misrepresentation as averred. Those letters
dated 7.4.2008 and 8.1.2011 and its contents are not in dispute, and on
the contrary it reflect that they were interested in only getting the balance
amount. Therefore, even at that stage there was no issue with regard to
the consent terms. For the first time, the averments are made challenging
the consent decree being unlawful and/or against public policy in the suit
filed in the year 2012.
At this stage itself the background and the litigations behind
the consent decree is relevant to note, which has the foundation of
agreements so recorded above. The orders passed by the Court from time
to time and as noted in the pleadings as well as in the consent terms
further show that the transactions entered into by and between the parties
fruitfully acknowledged and understood. Admittedly, the Plaintiffs-
Respondent Nos.1 to 21 were represented throughout by the
Advocate/attorney at every stage of litigations between the parties.
Therefore, the independent challenge to the consent decree in this
background to set aside the agreements, basically on the ground of
misrepresentation, just cannot be gone into at this prima facie stage, in
such fashion, by overlooking the admitted position on record with regard
to the transactions, receipt of money, reciprocal obligations, apart from
9 / 31
10 ao.610-2012
consent decree endorsed by the Court. The learned Judge, though various
objections/averments/grounds are raised with regard to the
maintainability of the Suit, the limitation and the delay, yet has passed the
impugned order by wrongly holding that the Plaintiffs have made out the
prima facie case, the balance of convenience lies in their favour and the
irreparable loss will be caused if the applications are rejected.
10 In the present case, in reply to the injunction application
apart from resisting the claims on various grounds, the specific
jurisdictional issues have been raised including of maintainability and
limitation.
11 The learned Senior Counsel appearing for the Appellant have
read and referred various CPC provisions and contended that the Court
should have decided the issues of jurisdiction/limitation, and
maintainability of the suit before passing the order. The contention,
however, opposed by the other side as no such application filed or a plea
at any point of time was raised. In a given case the party may pray to lead
the evidence even in support of the preliminary objection. In the present
case, in view of the admitted background, all prayers are interlinked and
interconnected. Prayer clauses (a) and (b) are beyond limitation and so
10 / 31
11 ao.610-2012
also prayer clause (c). All these issues go to the root of the matter.
12 The Court, in such situation, is also required to consider the
issue of maintainability of such Suit in view of clear provisions of Order
23 Rule 3A of CPC for which no evidence is necessary. The binding effect
of the duly signed consent terms dated 3.11.2007, just cannot be
overlooked unless it is set aside in accordance with law and basically on
the basis of averments made in the year 2012, by the Plaintiffs. The
burden of proof on the Plaintiffs is quite heavy.
13 The learned senior counsel appearing for the Plaintiffs also
contended that the factum of compromise and/or background of the same
can be gone into by the Court as compromise decree itself could not reach
finality to the disputes as alleged. The submission is also made that
compromise can be terminated by the party at any point of time. The
factum of possession and other related aspect if wrongly recorded and/or
mentioned and if there is a dispute, an opportunity required to be given to
the parties. In such a situation also the Appellate Court for the first time
may not adjudicate and/or decide the preliminary issue as sought to be
contended by the learned counsel appearing for the Plaintiffs-Respondent
Nos.1 to 21.
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12 ao.610-2012
14 The aspect of jurisdiction and the maintainability of the Suit,
in my view also goes to the root of the matter even for passing such
interim injunction/ order. In view of Section 9A of CPC, the Court may
pass an appropriate ad-interim order to protect the interest of the parties.
We are concerned with the impugned order so passed by overlooking the
admitted material and the documents filed in support of their respective
contentions. It is quite settled that the issue of jurisdiction of the Court
has to be decided at earliest in any such matter. The preliminary
objection, if raised as contemplated under Section 9A and/or Order 14
Rule 2 of CPC, it is required to be determined by the Court by giving an
opportunity to both the parties and if necessary permitting them to lead
evidence. (Meher Singh Vs. Deepak Sawhny 1, Mukund Ltd. Vs. Mumbai
International Airport2 . The procedure to be followed by raising
appropriate application and/or plea of preliminary jurisdiction, is again a
matter which Court need to consider in the facts and circumstances of the
case. But having noted the objection so raised by the Appellant-Defendant
in reply, even at the interim stage, as held in view of Section 9A those
provisions are imperative, the decisions on the issue should not be
postponed and/or delayed by the Court. It covers all aspects of
1 1999 Bom.C.R. 107
2 2011 (2) Mh.L.J. 926
12 / 31
13 ao.610-2012
jurisdiction. The expression "jurisdiction" has wide scope and meaning
and it cannot be restricted. It just cannot be overlooked at the time of
hearing of interim injunction/relief. The stages of ad-interim relief and of
interim relief are also distinguishable.
15 The Supreme Court, in Sneh Gupta Vs. Devi Sarup & Ors. 3
has considered various facets of Order 23 Rule 1 and 2 and 3A of CPC and
the judgments and the principles so cited and referred by the parties in
the present case also. The relevant para-26 and 27are under:
"26.A consent decree, as is well known, is merely an
agreement between the parties with the seal of the court
superadded to it. [see Baldevdas Shivlal V. Filmistand
Distributors (India) P.Ltd and Parayya Allayya Hittalamani V.
Parayya Gurulingayya Poojar]
27.If a compromise is to be held to be binding, as is well
known, it must be signed either by the parties or by their
counsel or both, failing which Order 23 Rule 3 of the Code of
Civil Procedure would not be applicable. (see Gurpreet Singh
V. Chatur Bhuj Goel).
16 The same judgment has also consider that such consent
decree if challenged on the ground of it be unlawful and against the
public policy and/or it is void, it has to be challenged and must get set
aside. It is also specifically observed that "it is not the law where the
decree is void, no period of limitation shall be attracted at all.". It is
3 (2009) 6 SCCC 194
13 / 31
14 ao.610-2012
further observed as under:
"compromise may void or voidable but it is required to be set
aside by filing suit within the period of limitation. If an order
is void or voidable, the same must be set aside. Thus, the
compromise/consent decree, which is as good as a contested
decree, even if void was required to be set aside. If the
compromise has been accepted in absence of all the parties,
the same would be void and the decree based thereupon
must be set aside."
17 In case of Parayya Allayya Hittalamani Vs. Sri Parayya
Gurulingayya Poojari4, the Supreme Court, in facts and circumstances of
the case, even consider Section 92 of Evidence Act and observed in para
14,15 and 16 as under:
"14.A consent decree, as is well known, is a contract between
the parties with the seal of the court superadded to it. [see
Baldevdas Shivlal V. Filmistand Distributors (India) P.Ltd and
Hindustan Motors Ltd. V. Amritpal Singh Nayar]
15.We are, however, not obvious of the fact that such consent
decree may operate as an estoppel. (see Sailendra Narayan
Bhanja Deo V. State of Orissa)
16.It is equally well settled that while construing a decree,
the court can and in appropriate case ought to take into
consideration the pleadings as well as the proceedings
leading up to the decree. In order to find out the meaning of
the words employed in a decree, the court has to ascertain
the circumstances under whih these words came to be used.
(see Bhavan Vaja V. Solanki Hanuji Khodaji Mansang)
The same judgment also noted the importance of conduct of
4 (2007) 14 SCC 318
14 / 31
15 ao.610-2012
the parties followed by the signed consent decree.
18 The Supreme Court in Raja Sri Sailendra Narayan Bhaanja
Deo Vs. State of Orissa5, in para-8 observed as under:
"The plea of estoppel is sought to be founded on the
compromise decree, Ex.'O' passed by the Patna High Court on
2nd May, 1945, in F. A. No. 15 of 1941. The compromise
decree is utilised in the first place as creating an estoppel by
judgment. In In re. South American and Mexican Company,
Ex parte Bank of England , it has been held that a judgment
by consent or default is as effective an estoppel between the
parties as a judgment whereby the court exercises its mind on
a contested case. Upholding the judgment of Vaughan
Williams, J., Lord Herschell said at page 50 :-
"The truth is, a judgment by consent is intended
to put a stop to litigation between the parities
just as much as is a judgment which results from
the decision of the Court after the matter has
been fought out to the end. And I think it would
be very mischievous if one were not to give a fair
and reasonable interpretation to such judgments,
and were to allow questions that were really
involved in the action to be fought over again in
a subsequent action".
19 The learned senior counsel appearing for both the parties
read and recorded the consent terms/decree itself. Therefore, at this
interim stage, the conduct of the parties and the contents of the consent
terms are necessary to be dealt with in detail for considering the aspect of
prima facie case, balance of convenience and irreparable injury, as the
5 1956 SCR 72: AIR 1956 SC 346
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16 ao.610-2012
main trial may take some more time.
20 Admittedly, the consent decree as filed in Special Civil
suit No.663 of 1994 where the Appellant was Defendant No.6.
Respondent No.22 in the present appeal was the Plaintiff. The other
contesting Respondent Nos.1 to 21-owner of the property even as
mentioned in the consent decree were the Defendants including the legal
heirs. Respondent No.22, filed the suit against the Appellant along with
the owners for the specific performance based upon agreement dated
2.3.1989 and 2.2.1990. The Appellant also made party as Defendant
No.6. There is no dispute with regard to the suit property. The Plaintiffs in
the present suits (the respondents) never denied and/or challenged even
the other portion/part of the consent terms, about the transfer and the
possession of the property. Clauses 4 and 8 of the consent decree are
reproduced below:
"4. The Defendant nos.1/1,1/2, 3 and Plaintiff do hereby
jointly and severally agree and declare that the suit property
is in vacant physical and peaceful possession of the Defendant
No.6 in part performance of the contract and that the
Defendant no.6 or anyone claiming through or under it shall
hereafter always be entitled to own occupy, enjoy, possess
and/or otherwise deal with the suit property in any manner as
they may deem expedient and proper, subject to realization of
cheques to be paid to the Plaintiff and the Defendant
Nos.1/1,1/2 and 3. The excess area in the suit property which
is not transferred to the Defendant no.6 M/s Mahavir
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17 ao.610-2012
Associates, shall always remain in possession and occupation
of the Plaintiff.
8. Subject to the payment of Rs.55,64,000/- (Rupees Fifty
Five Lacs Sixty Four Thousand Only) by the Defendant no.6 to
the Plaintiff as stated in foregoing clause no.7 hereinabove,
the rights, titles and interests of the Plaintiff in respect of the
suit property have come to an end. It shall be open to the
Defendant no.6 to occupy, possess and/or utilize the suit
property for any purposes as the Defendant No.6 may deem
fit and proper."
21 The agreement (assignment) dated 19.6.1992 also an
additional factor/document which was executed between Respondent
No.22 (Plaintiff in that suit) and the Appellant (Original Defendant No.6).
It was agreed by a specific term that "the assignment is valid, binding
subject to variation of quantum of rights and mode of payment". The
consent terms itself provide that the some payments were already
received by the owner of the property in question. What remained to be
done was the subsequent balance/payment and its mode of payment as
recorded in clause-7. It is agreed in the consent terms that the balance
consideration is a pre-condition to start/commence the actual work.
There was no dispute whatsoever referring to earlier contract with regard
to handing over possession of the property except the portion which is not
agreed and/or part of the suit property. But that is also on a foundation
that remaining property remain in possession and occupation of the
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18 ao.610-2012
Plaintiff (Respondent No.22). The Plaintiff in the present suit, on the
contrary agreed, declared and in fact acted upon accordingly that the
possession of the suit property is with Respondent no.22, which was
assigned/transferred to the Appellant.
22 No terms whatsoever show and/or suggest and/or provide
indicating any sign of possession and occupation of the property by the
Plaintiff in the present suit. It is specifically agreed by all the parties that
the Appellant (Defendant No.6) would be entitled to various permissions
granted by the authorities including exemption, if any, and it was
specifically agreed and permitted to develop the suit property including to
utilize the entire available FSI/TDR. The term itself provides that it was
subject to the payment to the (Plaintiffs) Respondent No.22 and
(Defendants) Respondent Nos.1 to 21, so referred therein. There was no
such objection whatsoever even at earlier point of time with regard to the
transaction, permission, possession, transfer and/or alienation of the
property. The consideration was also received from time to time and
acknowledged by the concerned parties to the consent terms who have
admittedly signed the consent terms as recorded by the competent civil
court. The submission is also made that the minors for and on their behalf
by respective parties can file such suit, but there is no such case even
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19 ao.610-2012
pleaded. The consent terms they sought to challenge is merely on the
ground of misrepresentation and the alleged necessary permission. The
issue of maintainability of present suits, by the minors, at relevant time,
are also unacceptable, basically in view of leave already granted by the
Court under Section 32 Rule 7 of CPC. The signatures for themselves and
on behalf of minors, therefore conclude this issue against the Plaintiffs of
the present suits.
The conduct of the parties is important aspect even at this
stage of the proceedings for the purpose of considering rival contentions,
following the Advocate's letters, as recorded above, which further
endorsed and confirmed even the contents of the consent decree in every
aspect. What remained was the balance payment of rupees one crore
with interest. The amount was also lying with the Advocate. The reason
behind it, no ground to overlook the consent decree at this stage.
24 The issue revolving around Section 32(g) and 43 of B.T. &
A.L. Act also need to be tested in view of above terms and conditions.
Having entered into the transactions and having handed over the
possession, the execution and/or development of the property based upon
the same is always subject to the provisions of law. The terms itself
19 / 31
20 ao.610-2012
permit necessary steps to be taken by the Appellant-Defendant No.6 and
or Respondent No.22 (the Plaintiff). The issue is also of the stages, those
permissions are necessary basically in view of agreed terms. The effect of
the same also needs to be tested at appropriate stage in case when the
consent decree is put for execution, if there is any objection. The legality
and/or related aspect of such consent terms is again a matter which
required to be tested in appropriate permissible proceedings. The
Judgments and the issue so cited by the rival parties revolving around the
permissions from the authorities, that itself cannot be the reason to accept
the contentions of the Respondent Nos.1 to 21-Original Plaintiffs, that
such suit is maintainable. Appellants are always at liberty to take
appropriate steps and the proceedings, as permissible under law. The
submission that the consent decree is nothing but the conveyance itself
and in view of Section 43 of B.T. & A.L. Act, the consent decree is void, as
no permission though sought for, was granted in favour of the power of
attorney, based upon the consent decree, unless adjudicated and decided
due permissible proceedings, cannot be the reason to hold that the prima
facie case and/or balance of convenience or equity lies in their favour.
25 The submission is also raised that there is no question of
extending principle of estoppel and/or res judicata, if the compromise is
20 / 31
21 ao.610-2012
against the provisions of law. The Appellant-Respondent No.22 not
admitting and/or conceded at any point of time that the consent terms
and/or compromise decree is against the provisions of law. Their
argument is otherwise. The submission based upon the case of Baldevdas
Shivlal & Anr. Vs. Filmistant Distributors (India) P.Ltd & Ors. 7, that case
was revolving around Section 11 and 115 of CPC and that provisions at
the relevant time was different and basically for want of Order 23 Rule 3A
which inserted in the year 1977. The Apex Court referring to said
provisions made position very clear in Banwarilal Vs. Chando Devi 8and
Horil Vs. Keshav (supra) as above against the maintainability of such suit.
26 The terms "not lawful" is also interpreted by this Court in
Anant Mahadeo Godbole Vs. Achut Ganesh Godbole & Ors. 9 by recording
that it includes and covers compromise suffers from want of authority or
exceeding of authority and also observed that Rule 3A bars the remedy of
a second suit on the cause of action that the compromise which resulted
in the passing of the decree was not lawful. Same is also recorded in the
judgment in Dr. Damodar Tukaram Gaunkar Vs. Shri Gopinath Rama
Gaunkar & Ors.10 whereby it is specifically observed that a separate suit
7 1969 (2) SCC 201
8 (1993) 1 SCC 581
9 AIR 1981 Bom 357
10 2006(3) ALL MR 88
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22 ao.610-2012
filed by Plaintiffs to challenge the consent decree on the ground of fraud
is not maintainable. It was on the basis of earlier judgment of Banwarilal
Vs. Chando Dev (supra).
27 The judgment so cited by the learned senior counsel for
Respondents in Ghulam Rasool Reshi Vs. Ghulam Hassan Reshi 11, in view
of above and in view of judgment of this court and also covering the facts
and circumstances of the present case. From every angle and for the
reasons so recorded above, I am not inclined to accept the opinion so
expressed (Ghulam-supra) in the facts and circumstances of the present
case.
28 The Apex Court recently in Horil Vs. Keshav & Anr. 6,
reiterated the concept "not lawful". The Apex Court in para-9 of the
judgment observed as under:
"9.It is true that a compromise forming the basis of the
decree can only be questioned before the same court that
recorded the compromise and a fresh suit for setting aside a
compromise decree is expressly barred under Order 23 Rule
3A. It is equally true that the expression "not lawful" used in
Order 23 Rule 3A also covers a decree based on a fraudulent
compromise hence, a challenge to a compromise decree on
the ground that it was obtained by fraudulent means would
also fall under the provisions of Order 23 Rule 3A."
11 AIR 2003 J K 6
6 (2012) 5 SCC 525
22 / 31
23 ao.610-2012
29 As recorded above, in the present facts and circumstances of
the case and considering the submissions made by the learned senior
counsel by referring to the judgments, the case of the Plaintiffs definitely
falls within the ambit and the consent decree passed by the competent
court is not lawful. There is no question in view of this to enlarged
and/or to accept the case even on factual background which resulted into
the consent decree as such separate suit is not maintainable. Therefore,
even the factual background that itself covers the case against the
Plaintiffs (Respondent Nos.1 to 21), as contemplated under Order 23 Rule
3-A of CPC.
30 The learned Judge though recorded the provisions of Order
23 Rule 3A, Section 42 of B.T. & A.L. Act by referring to some of the
judgments so cited by the parties, but not decided the issue of
maintainability of the suit. As noted above, the grounds/pleas specifically
raised and judgment so cited by the learned senior counsel by itself
mandate, to decide the issue of maintainability at earliest. In the present
facts and circumstances, that goes to the root of the matter. I am not
inclined to decide those preliminary issue in this appeal for the first time,
as it amounts to passing the order of jurisdiction for the first time in
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24 ao.610-2012
Appellate Court by curtailing the opportunity, even if any to the parties.
The parties are at liberty to raise appropriate plea/preliminary issue of
jurisdiction. However, the finding so recorded above in the facts and
circumstances of the case, in my view, sufficient to consider the basic
principle of law of injunction i.e.- prima facie case, balance of
convenience and irreparable injury agilest grant of such injunction.
31 The requirement of law as recorded above that even though
the decree is null and void, it has to be set aside first. Mere averments of
fraud and misrepresentation and/or decree is unlawful that itself is not
sufficient to treat such consent decree to be not binding upon the
Plaintiffs in question. This also on a foundation by overlooking CPC
whereby such suit itself is not maintainable. The contention that the
factual background and/or merits of the matter in a given case required
to be considered to test the aspect of fraud or misrepresentation itself take
care and falls within the ambit of "not lawful". The Apex Court as well as
this Court has already considered and cleared the position long back and
now reiterating again in above judgments so cited by the parties.
32 The conduct of the parties as already recorded is another
element which always necessary to consider before passing any order of
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25 ao.610-2012
injunction, basically by overlooking the agreed/signed consent decrees
between the parties. The Plaintiffs never took such steps at any earlier,
except for the first time in the suit about legality and/or illegality of the
consent decrees. Aspect of balance payment even if any was admittedly
the Plaintiffs received and specifically considering the agreement of 1992
and thereafter on the basis of consent decree.
33 In a situation for specific performance, on the foundation of
litigations and even otherwise, if there is dispute and/or any issue with
regard to actual transfer and/or development of the property in
accordance with law, the Court at appropriate stage can definitely pass
suitable order. The balance consideration, if was the only issue, even
after the consent terms of the year 2007, is again a matter which the
Court can consider at appropriate stage. That itself no way sufficient to
accept the case of the Plaintiffs that the transactions which they
themselves agreed and accordingly acted upon by giving possession of the
property and even by accepting the same throughout and in the
background the agreements of the same property which is admittedly
earlier of 1989/1990/1992 are bad in law. The learned Judge is wrong in
holding that there is a prima facie case, as consent decrees are not
binding upon the Plaintiffs. This in my view, is unsustainable in view of
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26 ao.610-2012
above provisions of law, apart from agreed terms so recorded and the
conduct of the parties.
34 The learned Judge by impugned order restrained all the
Defendants from entering into respective suit property till the decision of
the suits and from creating third party rights or interest in any portion of
the suit property. There is no justification whatsoever given neither there
are averments made in view of specific terms of handing over of the
possession and the transfer of property, as agreed.
35 Appellants, as well as, Respondent No.22 were main parties
and even in the consent terms it is specifically mentioned so far as the
possession is concerned as only suit property agreed to be transferred and
the balance would remain with the concerned Respondents (Original-
Plaintiffs). No averments even in the consent terms are made or
mentioned about the (present Plaintiffs) owner's possession of the
property in question. They are claiming to be in possession, is totally
unacceptable at this late stage of the litigations, on the basis of revenue
record. How they got the alleged possession, if any, in the above
background, is again a matter of trial. No case of long standing
possession.
26 / 31
27 ao.610-2012
36 The cultivation of the land even if any which they claimed in
the year 2011-2012, that itself cannot be the foundation to overlook the
above agreed terms of the consent decree/agreements about the
possession and the conduct of the parties including their own case till
2012. The Supreme Court's judgment so referred by the learned senior
counsel for the Respondent 1 to 21 to show that those entries at least can
be relied upon for the possession of the property, is also of no assistance
specifically in view of the Plaintiffs' own inconsistent and self-destructive
averments. The objections, though initially without raising any issue
about the possession, was for the balance payment till 2011, now when
filed the suit, the averments are of the misrepresentation and/or invalid
transaction/consent decree. The court therefore, in this background
required to consider the revenue record/entries so placed along with
electricity bills and other contemporary documents. Appellants in their
reply resisted those documents. Under what circumstances those
documents have been placed on record and to what extent the same can
be accepted as documents, to overlook the above consent decrees and the
conduct of the parties, is again a matter of trial. I am not inclined to
accept those documents at this prima facie stage sufficient to accept the
case of the Plaintiffs that they have possession of the properties. The
27 / 31
28 ao.610-2012
finding that the Plaintiffs are rustic agriculturist is also unacceptable.
Throughout, they were represented by the Advocates and most of the
Plaintiffs have signed for and on behalf of their minors. Leave was also
granted for minors, as contemplated under the CPC. The litigations, as
recorded above, for the property in question going on since 1992, and
from to time they have accepted the part payment without any objection.
37 The consent decrees against the public policy and not
unlawful under the Indian Contract Act is again based upon the
averments made in the plaint for the first time. The Plaintiffs are required
to prove the same first. Mere averments are not sufficient to set aside
and/or accept the case and basically when it is consent decrees. Unless
the decrees are set aside by the competent Court having jurisdiction, the
terms and condition/clauses so mentioned therein binds parties. This is
not the case where they are challenging the consent decrees for want of
signatures. The terms therefore so binds should prevail over the- reasons
so given by the learned Judge based upon the revenue record and/or
electricity bills and/or such contemporary documents. The revenue record
cannot be against the consent decree/terms and conditions whereby the
issue of possession and transfer of the property has been settled and/or
decided and agreed upon till 2012. The contents of the consent decree
28 / 31
29 ao.610-2012
therefore prevails, no question of accepting the case of the Plaintiffs,
based upon the revenue record and the electricity bills. The validity of
which itself is in dispute.
38 In view of above, I am declined to accept the reasoning
given by the learned Judge that there is no privity of contract between
present plaintiffs and defendants, the agreements are illegal so also
consent decrees, the Plaintiffs are in exclusive possession over the
disputed property. In this background, I am declined to accept that the
Plaintiffs have made out prima facie case and that there exists balance of
convenience and equity in their favour. The learned Judge in the
background hold that the Plaintiffs also sought a relief of perpetual
injunction restraining the defendants from creating any third party
rights is unacceptable reason to pass such order.
39 It is made clear that the observations so made in the order is
for deciding present appeals are with a view to consider the appellants, as
well as, respondents' submissions, as no prima facie case and/or balance
of convenience, equity lies in the favour of the Plaintiffs. The learned
Judge has passed the impugned order by holding that the consent decree
is unlawful and not binding upon the Plaintiffs and by overlooking the
29 / 31
30 ao.610-2012
basic terms of the consent terms and there was no objection till year
2012, still granted injunction as recorded above, is against the law. In
view of above, such consent decrees declared unlawful and/or not
binding, at the prima facie stage, as held by the learned Judge, amount to
exceeding the jurisdiction and specifically in view of the clear judgments,
as well as, the provisions of law.
40 However, liberty is granted to the parties to apply for
appropriate applications for deciding the preliminary issues and/or such
issues, if any.
41 For the reason so recorded above, impugned order is
unsustainable and is required to be quashed and set aside.
42 In the result, impugned Order dated 9 May 2012 is quashed
and set aside.
43 All Civil Applications are also dismissed.
44 All above Appeals from Order stand allowed. Rule made
absolute accordingly. No costs.
30 / 31
31 ao.610-2012
45 The learned Senior Counsel appearing for Respondent Nos.1
to 21-Original Plaintiffs, seeks stay of the order passed in open court
today. The submission is made that by order dated 19.3.2012, the learned
Judge granted ad-interim relief which has been continuing till impugned
order dated 9 May 2012 and thereafter even by this Court. The learned
senior counsel appearing for appellants, however, opposing the same by
contending that now order is passed by this Court in all respect therefore
there is no question of any stay. However, considering the reasoning given
in the present judgment, I am inclined to direct the parties to maintain
status-quo only till six weeks. The request of stay of the judgment in view
of above, is rejected.
(ANOOP V. MOHTA, J.)
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