Delhi High Court
Uoi & Anr vs Delhi Wakf Board on 7 October, 2010
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 235/1981
% 7th December, 2010
UOI & ANR ...... Appellants
Through: Ms. Shobhna Takiar,
Adv.
VERSUS
DELHI WAKF BOARD .... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The appellant, Union of India, through Secretary of Ministry of
Health, Family Planning and Urban Development, by means of this first
appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC)
challenges the impugned judgment and decree dated 6.3.1981 passed
by the Additional District Judge dismissing the suit on the basis of an
application moved under Order 23 Rule 3 CPC by the respondent. In
order to appreciate, the judgment, it is necessary to refer to paras 4 to
7 of the impugned judgment and decree which read as under:-
"4. In brief the assertion made in these applications is
that at the instance of Shri Fakkruddin Ali Ahmed a high
level meeting was attended by the Union Minister of Housing
and Works, Lt. Governor of Delhi and other officers of the
parties to resolve the dispute between the parties and
Burney Committee was appointed which made its report in
March, 1976 and in view of the said report the Government
purported to have released 200 Wakf Properties and finally
in the general meeting of the Hon'ble Minister of works and
Housing & Wakf Dept and responsible officers the Burney
Committee's report was approved. It was said that vide the
report of the Burney Committee 200 Wakf Properties were
released and on 26.5.79 the Hon'ble Minister of Works &
Housing and Wakf, being the Chairman of the Central Wakf
Council had announced that the orders had been issued for
the release of 200 Wakf Properties. So it was said in these
applications that the matter in dispute stood concluded and
the plaintiff had admitted that it had no claim and they had
accepted the claim of the defendant. The minutes of the
proceedings were attached with the applications. It was also
alleged that in the Burney Committee report the
Government had agreed that they would b withdrawing their
claims to the ownership of the properties in suit.
5. The plaintiffs were called upon to give reply to these
applications as far back as on 28.11.80 when my learned
predecessor required the plaintiffs to put in the reply further
opportunity was granted to the plaintiff to put in reply and
the case was adjourned to 30.1.81. It was specifically
ordered by me that final adjournment had been granted as
already sufficient time had been given and that no further
time shall be given. The case was adjourned to 30.1.81 and
again on that date the reply was not filed on behalf of the
plaintiff. As prayed for one more adjournment was granted
and the case was adjourned for 25.2.81. On this date also
no reply was filed and the request of the plaintiff to grant
further opportunity was refused and the case was fixed for
orders.
6. As no reply has been filed on behalf of the plaintiff,
so the averments made in these applications are deemed to
have been accepted. Under the proviso to Order 23 Rule 3
CPC the court is required to decide the question whether or
not the parties had settled the subject matter of the suit
where the taking place of the compromise is alleged by one
party and is denied by the other party. Here since the
averments of the settlement between the parties cannot be
said to have been denied on behalf of the plaintiff as by not
filing the reply they are deemed to have accepted the
allegations of the defendant so I am satisfied that the
plaintiff by approving the report of the Burney Committee
had withdrawn their claims in respect of the properties in
these suits.
7. So in view of Order 23 Rule 3 C.P.C. these suits are
dismissed. However, I make no order as to costs."
2. From the above paras of the impugned judgment it is therefore
clear that the suit has been dismissed on the ground that the
recommendations of the Burney Committee were accepted by the
Government. However, this issue could not have been considered in
an application under Order 23 Rule 3 CPC unless and until there was
agreement in writing signed between the parties in terms of Order 23
Rule 3 CPC. Order 23 Rule 3 CPC reads as under:-
"xxxxxx
3. Compromise of suit.- Where it is proved to the
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 alleged 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 reasons to
be recorded, thinks fit to grant such adjournment.]
[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. This provision of Order 23 Rule 3 CPC was specifically amended
by Act of 104 of 1976 w.e.f 1.2.1977 and which mandates that before
the court accepts a compromise under Order 23 Rule 3 CPC the same
has to be in writing and signed by the parties. The need for amending
this provision arose because many a times judicial time was being
wasted on applications being filed under Order 23 Rule 3 alleging that
orally the suit was compromised and the consequent enquiries having
to be conducted as to the alleged oral compromise.
A reading of the aforesaid paras of the impugned judgment and
decree show that there is no agreement in writing signed by the
parties which has been relied upon in the impugned judgment and
decree for disposal of the suit accepting of the application under Order
23 Rule 3 CPC. In view of the above, the impugned judgment and
decree clearly flies in the face of the categorical language of Order 23
Rule 3 CPC which was specifically amended in 1976 w.e.f. 1.2.1977.
The judgment in this case is dated 6.3.1981 and the amended Order
23 Rule 3 CPC would be clearly applicable. Accordingly, the appeal is
allowed and the impugned judgment and decree is set aside. Parties
are directed to appear before the District Judge on 23.12.2010
whereafter the District Judge will mark the case to the appropriate
court for disposal in accordance with law. In case the respondent who
was not represented in the today's hearing does not appear before the
District Judge, the appropriate court will issue notice to the respondent
before further proceeding in the suit.
The appeal is therefore accordingly disposed of as allowed.
Trial court record be sent back.
DECEMBER 07, 2010 VALMIKI J. MEHTA,J
ib
