Bombay High Court
Sou.Moti Dinshaw Moriadi/Irani And ... vs Shri.Phiroze A. Irani And Ors on 25 January, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
2024:BHC-AS:3857
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.92 OF 1996
1. Mrs. Moti Dinshaw Irani ] .. Appellants /
2. Mr. Jehangir Dinshaw Irani ] Original Plaintiffs
Versus
1. Mr. Phiroze Aspandiar Irani ]
Since Deceased - through LRs. ]
1[a]. Ketty Firoze Irani ]
1[b]. Raiyomand Firoze Irani ]
1[c]. Sanober Firoze Irani ]
1[d]. Mehrooz Firoze Irani ]
2. Mr. Mehmood M.H. Moledina ]
3. Mrs. Shirin Ismail Umar ]
Since Deceased - through LRs. ]
3[a]. Riyaz Ismail Omer ]
3[b]. Zia Ismail Omer ]
4. Mrs. Hamida S. Omar ]
Since Deceased - through LRs. ]
4[a]. Zafar Sattar Omer ]
4[b]. Zahid Sattar Omer ]
4[c]. Lubna M. Azad ]
5. Mr. Vinayak Shankarrao Pingle ]
6. Mr. Vilas Shankarrao Pingle ]
7. Smt. Subhadrabai T. Bhujbal ]
8. Smt. Sushilabai S. Dhadge ]
9. Mrs. Suman Vishwanath Girme ]
10. Mrs. Asha Prabhakar Dalvi ]
1/21
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11. Mr. Kisan @ Krishnarao Rambhau Pingle ]
12. Mr. P.A. Inamdar ]
13. Chashmeshahi Building of Flat Owners ]
14. Moghul Garden Building of Flat Owners ]
15. Oxford Hallmark Realty Partnership Firm ]
Through its Partners : ]
15[A]. Aniruddha Uttam Seolekar ] .. Respondents /
15[B]. Pramod Mishrilal Dhadiwal ] Original Defendants
ALONG WITH
INTERIM APPLICATION NO.2371 OF 2021
INTERIM APPLICATION NO.3911 OF 2021
IN
FIRST APPEAL NO.92 OF 1996
1. Oxford Hallmark Realty Partnership Firm ]
Through its Partners : ]
1[A]. Aniruddha Uttam Seolekar ] .. Applicants /
1[B]. Pramod Mishrilal Dhadiwal ] Org. Def. Nos.15, 15A & 15B
Mr. A.V. Anturkar, Sr. Advocate, with Mr. Tanaji Mhatugade, for the
Appellants.
Mr. R.D. Soni, with Mr. V.R. Kasale, i/by Ram & Co., for the Applicants in
IA/2371/2021 and IA/3911/2021 in FA/92/1996 and for Respondent
Nos.15[A] and 15[B] in FA/92/1996.
Mr. Prashant Naik, with Mr. A.R. Patil, i/by Mr. Sandeep Waghmare, for
Respondent No.12.
CORAM : A.S. CHANDURKAR & JITENDRA JAIN, JJ
The date on which arguments were heard : 05TH JANUARY, 2024.
The date on which Judgment is pronounced : 25TH JANUARY, 2024.
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JUDGMENT :
[ Per A.S. Chandurkar, J. ]
1. This First Appeal, filed under Section 96 of the Code of Civil
Procedure, 1908, (for short, "the Code"), raises a challenge to the
dismissal of Special Civil Suit No.611 of 1994 on 4 th July 1995. The
present proceedings have a checkered history and hence it would be
necessary to refer to relevant factual events that have bearing on the
adjudication of the present proceedings.
2. SCS No.268/1978 came to be filed by Firoz Aspandiar Irani as
plaintiff no.1 and Dinshaw Khikhushroo Irani as plaintiff no.2. The
plaintiffs claim to be owners of the suit property by virtue of various sale
deeds executed in their favour. They sought possession of the suit lands
from defendant nos.1 and 2, namely, Shankar Ganpat Pingle and Kishan @
Krishnarao Rambhau Pingle. In the said suit, as filed on 12 th July 1978,
possession of the suit property was sought in favour of the plaintiffs along
with defendant no.3-Mahmud M. Hashim Moledina. An alternate prayer
was made that in case the defendant no.3 was not willing to join the
plaintiffs in seeking the relief of getting actual possession of the suit
properties from defendant nos.1 and 2, then an equitable partition be
effected insofar as the share of the plaintiffs was concerned. During
pendency of the said suit, the plaintiffs filed an application on 27 th June
1986 below Exhibit-51 under the provisions of Order VI Rule 17 of the
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Code praying therein that the plaint be permitted to be amended with a
view to correct the description of the suit lands. This application, however,
was not pressed on 11th July 1986 and it was accordingly disposed of. On
the same day, another application below Exhibit-52 was filed by the
plaintiffs stating therein that the plaintiffs and the defendant no.3 desired
to partition the properties that were the subject matter of the said suit. It
appears that since the parties were not present, the said application came
to be filed on the same day. Thereafter, on 3 rd July 1986, an application
below Exhibit-53 came to be filed on behalf of the plaintiffs as well as
defendant no.3 along with defendant nos.4 and 6, who had been
subsequently impleaded as defendants. By the said application, the parties
prayed that on the basis of the document of Power of Attorney, the
compromise be recorded. On the same day, the Trial Court passed an order
below Exhibit-53 stating therein that it had perused the relevant
documents. Since the Power of Attorney Holder for the plaintiffs as well as
defendant nos.3 to 6 had admitted the contents of the compromise
petition, it was read and recorded. Thereafter, on 11 th July 1986, the
plaintiffs filed another application through their Power of Attorney Holder
below Exhibit-54 seeking amendment of the plaint on the ground that
land description numbers had undergone a change.
3. During pendency of SCS No.268/1978, the original plaintiff no.2
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expired on 5th July 1992. His legal heirs were brought on record as
plaintiff nos.2(a) and (b). They moved an application below Exhibit-151,
praying therein that the compromise sought to be recorded by preferring
application below Exhibit-53 was illegal, void and invalid on the ground
that it was signed by the Power of Attorney Holder with a view to defraud
plaintiff nos.2(a) and (b) of their share in the suit properties. It was also
prayed that the Court may not pass any order on the application that was
moved below Exhibit-142 under the provisions of order XXIII Rule 1 of the
Code for recording the compromise. This application came to be rejected
by the Trial Court on 7th October 1995. It may be stated that this order
passed below Exhibit-151 is the subject matter of challenge in Writ
Petition No.5621 of 1995 filed at the instance of plaintiff nos.2(a) and (b).
4. The proceedings in SCS No.268/1978 came to be disposed of in
terms of the compromise below Exhibits 52 and 53 on 18 th / 20th
December 1996. The decree passed in the said proceedings is the subject
matter of challenge in Civil Appeal No.1022 of 2000, that has been
preferred by the original plaintiff nos.2(a) and 2(b) under Section 96 of
the Code. This appeal is presently pending before the District Court at
Pune.
5. On 26th April 1994, the plaintiff nos.2(a) and (b) in SCS
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No.268/1978 filed SCS No.611/1994 in the Court of Civil Judge, Senior
Division, Pune, praying therein that the Court be pleased to declare the
partition that was alleged to have taken place as mentioned in Exhibits 51,
52, 53 and 54 in SCS No.268/1978 as illegal, invalid, null and void. A
further prayer was made to partition the suit properties by metes and
bounds and to grant the plaintiffs 42.22% share in the suit properties.
Various other ancillary prayers were also made in the aforesaid suit. It may
be stated that the original plaintiff no.1 and the original defendant no.3 in
SCS No.268/1978 were arrayed as defendant nos.1 and 2 in SCS
No.611/1994, the other parties were also impleaded in the said suit. The
defendants filed their written statements. The Power of Attorney Holder of
the plaintiffs and defendant no.3 in SCS No.268/1978 had been arrayed
as defendant no.12 in the present suit. The defendant no.12 raised an
objection to the jurisdiction of the Trial Court to decide the said suit on the
ground that the same was barred by virtue of the provisions of Order XXIII
Rule 3A of the Code. On that basis, the plaintiffs, who were plaintiff
nos.2(a) and (b) in SCS No.268/1978, filed an application below Exhibit-
116 on 14th December 1994 praying that the Trial Court frame an issue of
jurisdiction as a preliminary issue in terms of Section 9A of the Code. The
defendants filed reply to the said application stating that the plaintiffs
themselves could not question the jurisdiction of the Trial Court to try the
suit. By an order passed on 18th January 1995, the learned Judge of the
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Trial Court was pleased to frame a preliminary issue as to whether the
Court had jurisdiction to try and entertain the suit.
6. The Trial Court thereafter proceeded to hear the parties on the said
preliminary issue. It referred to the provisions of Order XXIII Rule 3A of
the Code and also noted that in the earlier suit, being SCS No.268/1978,
no decree had been drawn in terms of the compromise and that the said
suit was pending. It then observed that the terms of compromise had been
acted upon by the parties and mutation entries had been effected. It held
that the challenge raised in SCS No.611/1994 was premature for the
reason that the earlier suit in which the compromise was recorded was
still pending. It accordingly held that the suit was not maintainable in
view of the provisions of Order XXIII Rule 3A of the Code. SCS
No.611/1994 was accordingly dismissed by holding that the Court had no
jurisdiction to try the same. Being aggrieved, the original plaintiffs have
challenged the decree as passed in SCS No.611/1994 in First Appeal
No.92 of 1996.
7. Mr. A.V. Anturkar, learned Senior Advocate for the appellants -
original plaintiffs submitted that the Trial Court committed an error in
holding SCS No.611/1994 to be not maintainable. According to him, there
was no valid compromise entered into between the parties to the suit so as
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to attract the bar as contemplated by the provisions of Order XXIII Rule 3A
of the Code. The compromise, as alleged, though shown to be between the
plaintiffs and the defendant no.3, it could not be said that the same was a
reason to hold that a substantive suit seeking to challenge the compromise
was not maintainable. He submitted that the plaintiff no.2 had not
authorized the Power of Attorney Holder to compromise the said
proceedings and the Power of Attorney Holder acted beyond the power
granted to him. Since the plaintiff no.2 had not signed the application at
Exhibit-53 in SCS No.268/1978, the contents of that application could not
bind the legal rights of the plaintiff no.2 as well as his legal
representatives. It was then submitted that the provisions of Order XXIII
Rule 3 of the Code would not be attracted in the facts of the case for the
reason that in the said suit, the eviction of defendant nos.1 and 2 was
sought. The defendant nos.1 and 2, who were contesting parties to the
suit, had not joined the other parties in the compromise. Notwithstanding
the application below Exhibit-53, the proceedings in SCS No.268/1978
had been pending since the prayers therein were yet to be adjudicated. He
referred to various provisions of the Code to contend that a compromise,
as contemplated by the provisions of Order XXIII Rule 3 of the Code, was
one that would dispose of the suit in its entirety and a compromise inter se
between parties having a common interest and excluding the contesting
parties could not be a reason to attract the bar under Order XXIII Rule 3A
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of the Code. The Trial Court misdirected itself while holding that it had no
jurisdiction to try the suit merely on the ground that it was alleged that a
compromise had taken place as per Exhibits 52 and 53. The suit was
maintainable and hence it was necessary for the Trial Court to have
entertained the same on its merits. It was thus submitted that the order
dated 4th July 1995 was liable to be set aside and the suit was liable to be
adjudicated on merits.
8. Mr. R.D. Soni, the learned counsel appearing for respondent no.15
opposed the aforesaid contentions and supported the order passed by the
Trial Court. He submitted that the respondent no.15 had stepped into the
shoes of the original owners of the property and pursuant to the
agreement entered into in the year 2005 after adjudication of SCS
No.268/1978 had acquired title to the suit property. The said respondents
were concerned with the property bearing Survey No.81. According to
him, the plaintiffs were not justified in seeking to raise a challenge to the
compromise inasmuch as the plaintiff no.2, who was their predecessor, did
not take any steps whatsoever to resile from the compromise during his
lifetime. The same was duly acted upon and hence the Trial Court was
justified in holding the subsequent suit filed by the plaintiffs to be not
maintainable. He pointed out that in the first appeal, the original
defendant no.3 had been deleted from the array of parties by seeking such
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leave on 18th September 1996. This would indicate that the original
plaintiffs were not interested in seeking eviction of the defendant no.3 and
merely sought to challenge the compromise that was accepted by the
predecessor of the plaintiff no.2 during his lifetime. To substantiate his
contentions, the learned counsel placed reliance on the decisions in Triloki
Nath Singh Vs. Anirudh Singh (D) Thr. LRs. and Ors., 2020 INSC 385, as
well as in Sree Surya Developers Vs. N. Sailesh Prasad, 2022 INSC 167 .
The Trial Court having found the bar under the provisions of Order XXIII
Rule 3A to be attracted, rightly dismissed the suit as not maintainable. The
said order did not call for any challenge.
. As regards the challenge to the orders passed below Exhibits 151
and 169 in SCS No.268/1978 by filing Writ Petition Nos.5621 of 1995 and
5627 of 1995, it was pointed out that a substantive appeal challenging the
decree passed in SCS No.268/1978 was pending and hence the writ
petitions were not liable to be entertained. It was prayed that all the
proceedings be dismissed especially since various third party rights had
been created and there was passage of substantial time after adjudication
of the proceedings by the Trial Court.
9. Mr. Prashant Naik, learned counsel appearing for respondent no.12
supported the contentions raised on behalf of respondent no.15. He too
submitted that the order passed below Exhibit-151 considered the entire
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matter in the proper perspective and that order did not call for any
interference. After the decree was passed in SCS No.268/1978, the
plaintiff nos.2(a) and 2(b) had filed an appeal under Section 96 of the
Code for challenging the same. Since this challenge was pending, all these
points could be raised in the said proceedings and it was not necessary to
grant the prayers made by the original plaintiffs in the present
proceedings. The learned counsel placed reliance on the decision in Triloki
Nath Singh (supra) to submit that in view of the provisions of Order XXIII
Rule 3A of the Code, subsequent Civil Suit being SCS No.611/1994 was
not maintainable. All the proceedings were liable to be dismissed.
10. On hearing the learned counsel for the parties and after perusing
the respective pleadings in SCS No.611/1994, the following point arises
for adjudication : "Whether the Trial Court was legally correct in holding
that the proceedings in SCS No.611/1994 were not maintainable and that
the bar under the provisions of Order XXIII Rule 3A was attracted ?"
11. Since the Trial Court has proceeded to non-suit the plaintiffs by
deciding the issue of jurisdiction under Section 9A of the Code, it would
be necessary to refer to the decision in Nusli Neville Wadia Vs. Ivory
Properties and Ors., 2019 INSC 1138, that has material relevance in the
present context. It was held by the Hon'ble Supreme Court therein as
under :-
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"20. In re : Meaning of the word "jurisdiction"
Jurisdiction is the power to decide and not merely the
power to decide correctly. Jurisdiction is the authority
of law to act officially. It is an authority of law to act
officially in a particular matter in hand. It is the power
to take cognizance and decide the cases. It is the
power to decide rightly or wrongly. It is the power to
hear and determine. Same is the foundation of judicial
proceedings. It does not depend upon the correctness
of the decision made. It is the power to decide
justiciable controversy and includes question of law as
well as facts on merits. Jurisdiction is the right to hear
and determine. It does not depend upon whether a
decision is right or wrong. Jurisdiction means power
to entertain a suit, consider merits, and render binding
decisions, and "merits" means the various elements
which enter into or qualify plaintiff's right to the relief
sought. If the law confers a power to render a
judgment or decree, then the court has jurisdiction.
The court must have control over the subject-matter,
which comes within classification limits of law under
which the court is established and functions."
"32. In re : "entertain the suit"
When we consider provisions in Section 9-A, the word
"jurisdiction" is qualified with "to entertain the suit",
the expression used is "jurisdiction to entertain the
suit". The court has jurisdiction to entertain a suit
when it has jurisdiction to receive it for consideration.
If at the threshold, the court cannot consider it, it can
be said that the court has no jurisdiction to entertain
the case. It is like a suit is cognizable by the Revenue
Court, but it is filed in civil court, the court cannot
consider it nor can receive it for trial. It is like the
jurisdiction to entertain the criminal appeal when the
court is not having inherent jurisdiction to consider
the case; it can be said that the court has no
jurisdiction to entertain. When the separate statutory
mechanism is provided for the consideration of a
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particular dispute and jurisdiction of civil court is
barred, and if it is brought before the civil court whose
jurisdiction is barred, it cannot entertain such a suit
and receive it for consideration. It can be said that the
court has no jurisdiction to entertain such a suit.
When the court cannot think over to allow itself to
consider, it can be said that it has no jurisdiction to
entertain. It is like a case is cognizable in a consumer
forum; a civil court cannot entertain it."
"35. The expression "entertain" means to admit a thing for
consideration. When a suit or proceeding is not
thrown out in limine, but the court receives it for
consideration for disposal under the law, it must be
regarded as entertaining the suit or proceedings. It is
inconsequential what is the final decision. The word
"entertain" has been held to mean to admit for
consideration, as observed by this Court in Lakshmi
Rattan Engg. Works Ltd. Vs. CST, air 1968 SC 488. The
expression "entertain" means to adjudicate upon or to
proceed to consider on merits as observed in
Hindusthan Commercial Bank Ltd. Vs. Punnu Sahu,
(1971) 3 SCC 124."
"48. In re : Jurisdiction to entertain under Section 9-A CPC
The word "jurisdiction" in Section 9-A is qualified with
expression to "entertain" the suit. Thus, it is apparent
that the scope of Section 9-A has been narrowed down
by the legislature as compared to the provisions
contained in Order 14 Rule 2(2) by not including the
provisions as to "a bar created by any other law for the
time being in force"."
"50. When we consider what colour expression
"jurisdiction" has in Section 9-A, it is clearly in the
context of power to entertain, jurisdiction takes colour
from accompanying word "entertain" i.e. the court
should have jurisdiction to receive a case for
consideration or to try it. In case there is no
jurisdiction, court has no competence to give the
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relief, but if it has, it cannot give such relief for the
reason that claim is time-barred by limitation or is
barred by the principle of res judicata or by bar
created under any other law for the time being in
force. When a case is barred by res judicata or
limitation, it is not that the court has no power to
entertain it, but it is not possible to grant the relief.
Due to expiry of limitation to file a suit,
extinguishment of right to property is provided under
Section 27 of the Limitation Act. When court dismisses
a suit on the ground of limitation, right to property is
lost, to hold so the court must have jurisdiction to
entertain it. The court is enjoined with a duty under
Section 3 of the Limitation Act to take into
consideration the bar of limitation by itself. The
expression "bar to file a suit under any other law for
the time being in force" includes the one created by
the Limitation Act. It cannot be said to be included in
the expression "jurisdiction to entertain" suit used in
Section 9-A. The court has to receive a case for
consideration and entertain it, to look into the facts
constituting limitation or bar created by any other law
to give relief, it has to decide the question on merits;
then it has the power to dismiss the same on the
ground of limitation or such other bar created by any
other law. Thus, the meaning to be given to
jurisdiction to entertain in Section 9-A is a narrow one
as to maintainability, the competence of the court to
receive the suit for adjudication is only covered under
the provisions. The word "entertain" cannot be said to
be the inability to grant relief on merits, but the same
relates to receiving a suit to initiate the very process
for granting relief."
12. We may also refer to a recent decision of the Hon'ble Supreme Court
in Asma Lateef & Anr. Vs. Shabbir Ahmad & Ors., 2024 INSC 36 , wherein
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the aspect of jurisdiction of a Court has been considered. In paragraph 38
of the said decision, it has been observed as under :-
"38. What follows from a conspectus of all the aforesaid
decisions is that jurisdiction is the entitlement of the
civil court to embark upon an enquiry as to whether
the cause has been brought before it by the plaintiff in
a manner prescribed by law and also whether a good
case for grant of relief claimed been set up by him. As
and when such entitlement is established, any
subsequent error till delivery of judgment could be
regarded as an error within the jurisdiction. The
enquiry as to whether the civil court is entitled to
entertain and try a suit has to be made by it keeping in
mind the provision in section 9, CPC and the relevant
enactment which, according to the objector, bars a
suit. Needless to observe, the question of jurisdiction
has to be determined at the commencement and not at
the conclusion of the enquiry."
13. Keeping in mind the aforesaid legal principles, in our view, the order
passed by the Trial Court on 4 th July 1995 in SCS No.611/1994 dismissing
the suit on the ground that the Court had no jurisdiction suffers from
various legal infirmities and is liable to be set aside for the following
reasons :-
(a) The Trial Court has recorded a finding that in view of the
provisions of Order XXIII Rule 3A of the Code, SCS
No.611/1994 was not maintainable. The provisions of Rule
3A of Order XXIII of the Code read as under :-
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"3-A. Bar to suit - No suit shall lie to set aside a decree
on the ground that the compromise
on which the decree is based was not
lawful." (Emphasis supplied)
The aforesaid provision indicates that no suit shall lie to set
aside a decree on the ground that the compromise on the
basis of which the decree is passed was not lawful. A plain
reading of the aforesaid provision indicates that the earlier
suit should have been disposed of by passing a decree in
view of a compromise entered into between the parties. In
such contingency, a subsequent suit raising a challenge that
the compromise recorded in the earlier suit was not lawful
would not lie. Undisputedly, in the present case the earlier
suit being SCS No.268/1978 was pending when the Trial
Court proceeded to decide the preliminary issue of
jurisdiction in SCS No.611/1994 on 4th July 1995. SCS
No.268/1978 came to be subsequently decided on 18 th/20th
December 1996. In fact, the Trial Court, in paragraphs 8
and 10 of the impugned order has recorded in clear terms
that the earlier suit was pending when the issue of
jurisdiction was being considered in the subsequent suit. It
is thus clear from the record that there was no decree
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passed on 4th July, 1995 based on compromise as stated to
be recorded below Exhibit-53 in SCS No.268/1978, when
the Trial Court proceeded to hold that the subsequent suit
was not maintainable in view of the provisions of Order
XXIII Rule 3A of the Code. If the earlier suit itself was
pending and no decree therein had been passed, there
would be no question of the provisions of Rule 3A of Order
XXIII of the Code being attracted.
The matter can be viewed from another angle by perusing
the reliefs sought in SCS No.611/1994. Prayer clause (a) in
SCS No.611/1994 reads as under :-
"(a) that the Hon'ble Court may kindly be pleased to
declare that the partition alleged to have been taken
place, as mentioned in Ex. 51, 52, 53 and 54 in
Special Civil Suit No.268/1978 and in the 7/12 th
records and the mutation entries in the Revenue
records is illegal, invalid, null and void under the
various provisions of law, specially the Urban Land
(Ceiling and Regulation) Act, 1976 and also
voidable and not bind on the plaintiffs as the same
has been obtained by playing fraud upon the late
Mr. Dinshaw Irani, the predecessors-in-title of the
plaintiffs and consequently, to declare that the suit
properties described in para 1(a), (b) and (c) above
continue to be the joint properties of the plaintiffs.
Defendant no.1 and defendant nos.2, 3 and 4."
The plaintiffs had sought a declaration that the partition
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"alleged to have been taken place as mentioned in Exhibits
51, 52, 53 and 54 in SCS No.268/1978" be declared as
illegal, invalid, null and void and also not binding on the
plaintiffs. The plaintiffs, therefore, did not and could not
have sought setting aside of any decree on the ground that
the compromise on which the decree was passed was not
lawful for the reason that when the subsequent suit was
filed, there was no decree passed recording any
compromise. In absence of there being any decree in
existence, the provisions of Rule 3A of Order XXIII of the
Code would not be attracted.
(b) The plaintiff nos.2(a) and 2(b) in SCS No.268/1978, who
were also the plaintiffs in SCS No.611/1994, had filed an
application below Exhibit-151 in SCS No.268/1978 praying
that the alleged partition made by Mr. P.A. Inamdar in his
capacity as the Power of Attorney Holder for the original
plaintiff no.2 be declared as illegal, void and invalid. The
Trial Court dismissed the said application on 7 th October
1995. Even in the said order, it has not been held by the
Trial Court that there was any decree passed on the basis of
such compromise. In fact, the Trial Court has noted in its
order passed on 7th October 1995 below Exhibit-151 that
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the subsequent suit being SCS No.611/1994 came to be
dismissed on the ground that the compromise could not be
challenged in a separate suit. This aspect is being referred
to only to indicate that the earlier suit came to be decided
much after the Trial Court proceeded to hold the
subsequent suit not maintainable under Order XXIII Rule
3A of the Code. Since a substantive appeal being Civil
Appeal No.1022 of 2000 challenging the decree passed in
SCS No.268/1978 is pending, it is not necessary to dilate
further on the order passed below Exhibit-151.
From the aforesaid, it becomes clear that the Trial Court
misdirected itself when it came to the conclusion that in
view of the provisions of Order XXIII Rule 3A of the Code,
the subsequent suit was not maintainable. Considering the
nature of reliefs sought therein, which did not include a
prayer to set aside any decree, such bar was not at all
attracted. On the date the subsequent suit was filed, there
was no jurisdictional bar to its institution much less a bar
under Order XXIII Rule 3A of the Code.
14. Coming to the decisions relied upon by the learned counsel for the
parties, we find that in view of our conclusion that the bar under
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provisions of Order XXIII Rule 3A of the Code was not at all attracted in
the facts of the present case for the reason that there was no decree passed
based on compromise, it is not necessary to refer to the said decisions. The
legal position that a subsequent suit questioning the lawfulness of a
compromise decree is not maintainable, as held in the said decisions, is
well settled. Accordingly, the point, as framed, is answered in the negative
by holding that the Trial Court was not legally correct in holding the
proceedings in SCS No.611/1994 to be not maintainable in view of the bar
under provisions of Order XXIII Rule 3A of the Code.
15. In view of what has been held hereinabove, the following order is
passed :-
(i) The order dated 4th July 1995 passed by the learned Jt.
Civil Judge, Senior Division, Pune in Special Civil Suit
No.611 of 1994 is quashed and set aside.
(ii) It is held that the said suit was not barred under
provisions of Order XXIII Rule 3A of the Code when it
was filed. The said suit is restored to file for its
adjudication on merits.
(iii) It is clarified that the observations made in this judgment
are only for deciding the correctness and legality of the
order passed on 7th October 1995 holding SCS
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No.611/1994 to be not maintainable. The proceedings in
Civil Appeal No.1022 of 2000 that is pending before the
District Court, Pune shall be decided on its own merits
and in accordance with law, without being influenced by
any observations made herein.
(iv) The First Appeal is allowed in aforesaid terms, leaving
the parties to bear their own costs. Pending Interim
Applications are disposed of. Decree shall be drawn
accordingly.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J. ]
FA-92-1996.doc
Dixit
