Gujarat High Court
Vaghri Dhirubhai Kantibhai vs Charity Commissioner on 6 October, 2021
Bench: Vipul M. Pancholi
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 228 of 2021
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FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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LAVARIYA DEVRAJBHAI DEVRAJ RAYJIBHAI
Versus
CHARITY COMMISSIONER
=======================================================
Appearance:
MR PUSHPADATTA VYAS(1296) for the Applicant(s) No. 1
MS JYOTI BHATT, AGP for the Opponent(s) No. 1,8,9
MR SACHIN D VASAVADA(3342) for the Opponent(s) No.2-6
MR SD MOTWANI(6681) for the Opponent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 06/10/2021
ORAL JUDGMENT
1. Learned advocates appearing for the parties have
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
jointly requested that as the issue involved in
these applications is similar, all these
applications be finally disposed of at an
admission stage. Therefore, all these applications
are heard together and are being decided by this
common judgment.
2. Rule. Learned AGP Ms. Jyoti Bhatt for respondent
no.1, learned advocate, Mr. Sachin Vasavada for
respondent nos.2 to 6 and learned advocate, Mr.
S.D. Motwani for respondent no.7 waive service of
notice of Rule.
3. All these Civil Revision Applications are filed
under Section 115 of the Code of Civil Procedure,
1908 (hereinafter referred to as "the Code") by
the applicant challenging the order passed by the
concerned trial court, whereby the application
filed by the applicant under Order 7, Rule 11 of
the Code has been rejected.
4. For the sake of convenience, facts as stated in
Civil Revision Application No.228/2021 are
considered, which are as under,
4.1 The present applicant had filed Regular Civil
Suit No.61/2016 before the concerned trial
court against the respondent nos.2 to 6,
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
however during the pendency of the said
proceeding, compromise was arrived at between
the parties and, therefore on the basis of
the said compromise, consent decree dated
07.10.2016 was passed by the concerned trial
court.
4.2 Thereafter, the present respondent no.1 i.e.
the Charity Commissioner, Gujarat State, who
was not party to the said proceeding, came to
know about the consent decree passed by the
concerned Court on 07.10.2016, he filed
separate Regular Civil Suit No.71/2020
against the present applicant and the
respondent nos.2 to 7. In the said plaint,
the respondent no.1 herein has challenged the
consent decree dated 07.10.2016 passed by the
concerned trial court in Regular Civil Suit
No.61/2016 on various grounds.
4.3 After filing of the said suit by the
respondent no.1, the present applicant filed
an application under Order 7, Rule 11 of the
Code on the ground that the suit filed by the
respondent no.1 is barred by law. In support
of the said contention, the applicant has
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
placed reliance upon the Order 23, Rule 3A of
the Code.
4.4 The trial court, vide impugned order dated
12.07.2021, rejected the application, Exh.31
filed by the applicant and, therefore, the
applicant has filed the present Revision
Application.
5. Learned advocate, Mr. Vyas appearing for the
applicant has mainly contended that the suit filed
by the respondent no.1 challenging the consent
decree dated 07.10.2016 is not maintainable in
view of the provision contained in Order 23, Rule
3A of the Code. Learned advocate has submitted
that the issue involved in the present matter is
squarely covered by the decision rendered by the
Full Bench of this Court in case of Sakina
Sultanali Sunesara (Momin) Vs. Shia Imami Ismaili
Momin Jamat Samaj, reported in 2020 (1) GLR 586.
Learned advocate has mainly relied upon the
observations made in Paragraph No.40 of the said
decision. Learned advocate has, therefore, urged
that the impugned order passed by the trial court
rejecting the application filed under Order 7,
Rule 11 of the Code be quashed and set aside and
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
thereby the plaint of the respondent no.1 -
plaintiff be rejected.
6. On the other hand, learned AGP Ms. Bhatt appearing
for the respondent no.1 - original plaintiff of
Regular Civil Suit No.71/2020 has opposed these
applications. It is submitted that the consent
decree was obtained by the present applicant and
other private respondents by fraud and, therefore,
the concerned trial court has rightly rejected the
application filed by the present applicant. It is
also submitted that the respondent no.1 was not
party to Regular Civil Suit No.61/2016 filed by
the present applicant though he was necessary
party. It is, therefore, urged that all these
applications be dismissed.
7. Learned advocate, Mr. Vasavada for respondent
nos.2 to 6 and learned advocate, Mr. Motwani for
respondent no.7 have supported the contentions
raised by learned advocate for the applicant.
8. Having heard learned advocates appearing for the
parties and having gone through the material
placed on record, it would emerge that the present
applicant had filed Regular Civil Suit No.61/2016
against the private respondents, however during
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
the pendency of the said suit, compromise was
arrived at between the parties and, therefore on
the basis of the said compromise, consent decree
was passed by the concerned trial court on
07.10.2016. It is further revealed that the
present respondent no.1 - Charity Commissioner was
not party to the said proceeding and, therefore,
when the respondent - Charity Commissioner came to
know about the said consent decree, which was
alleged to have obtained by playing fraud, he
filed Regular Civil Suit No.71/2020, in which, now
the applicant has filed an application under Order
7, Rule 11 of the Code, which has been dismissed
by the trial court.
9. In the aforesaid background of the facts of the
present case, this Court would like to examine the
provision of law, upon which, reliance has been
placed by learned advocate for the applicant.
Order 23, Rule 3A of the Code reads as under,
"3A. 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."
10. From the aforesaid provision, it can be said that
no suit shall lie to set aside the decree on the
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
ground of compromise, on which, the decree was
passed, was not lawful.
11. At this stage, this Court would like to refer to
the decision rendered by the Full Bench of this
Court in case of Sakina Sultanali Sunesara
(supra), wherein the Full Bench of this Court has
observed in Paragraph No.40 as under,
"40. The upshot of the above may be summed up as
under:-
(i) After the deletion of Clause (m) of Rule 1
of Order XLIII, by the amendment Act 104 of
1976, no Appeal from Order against the
order passed under Rule 3 of Order XXIII
recording or refusing to record an
agreement, compromise or satisfaction would
lie under Rule 1 of Order XLIII of CPC.
Rule 1A of Order XLIII does not provide for
any remedy to file an appeal either against
any order or against any decree.
(ii) It is only in an appeal filed under Section
96(1) against the read decree with Order
passed in XLI the of suit CPC, after
recording of compromise or refusing to
record compromise, the appellant can
contest such decree on the ground that the
compromise should or should not have been
recorded, in view of Rule 1A(2) of Order
XLIII.
(iii) No appeal would be maintainable from a
decree passed by the Court with the consent
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
of the parties i.e. on the basis of the
compromise arrived at between the parties
in the suit under Rule 3 of Order XXIII, in
view of the bar contained in Section 96(3)
of CPC.
(iv) No suit shall lie to set aside a decree
passed under Rule 3 of Order XXIII on the
ground that the compromise on which the
decree is based was not lawful in view of
the bar contained in Rule 3A of Order
XXIII.
(v) If the aggrieved party was the party to the
suit, the only remedy available to him
against the decree passed by the Court on
the basis of compromise between the parties
(consent decree), would be to file an
application under the proviso to Rule 3 of
Order XXIII, disputing such compromise. The
Court which passed the compromise decree
has to decide the said dispute or question
raised by the party.
(vi) When either of the is parties a dispute to
the raised suit on by the question as to
whether there was a compromise or not, a
decree accepting the compromise on
resolution of that controversy, cannot be
said to be a decree passed with the consent
of the parties. Therefore, the bar under
Section 96(3) of the Code would not have
any application. Section 96(3) is
applicable to cases where the factum of
compromise or agreement is not in dispute.
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
(vii) If the aggrieved party was not the
party to the suit, the remedy available to
him to challenge the decree passed by the
Court on the basis of compromise between
the parties to the suit (consent decree),
would be to file an appeal leave review
under of Section the 96(1) appellate
application of CPC, Court, before or the
with to Court, the file a which passed the
decree, as may be permissible under Section
114 read with Order XLVII of CPC.
(viii) The words "signed by the parties"
contained in Rule 3 of Order XXIII would
include the compromise pleaders or signed
by the duly authorized the power-of-
attorney holders or the recognized agents
of the parties concerned."
12. From the aforesaid observations made by the Full
Bench of this Court, it can be said that no suit
shall lie to set aside the decree passed under
Order 23, Rule 3 of the Code on the ground that
the compromise on which the decree is passed, was
not lawful in view of the bar contain in Order 23,
Rule 3A of the Code. It is further revealed that
if the aggrieved party was not party to the suit,
remedy available to him to challenge the decree
passed by the Court on the basis of the compromise
between the parties to the suit would be to file
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an Appeal under Section 96(1) of the Code with
leave of the Appellate Court or to file review
application before the Court, which has passed the
decree as may be permissible under Section 114
read with Order XLVII of Code.
13. Keeping in view of the aforesaid observations made
by the Full Bench of this Court, if the facts of
the present case as discussed hereinabove are
examined, this Court is of the view that separate
civil suit filed by the respondent no.1 - Charity
Commissioner, who was not party to Regular Civil
Suit No.61/2016 challenging the consent decree
dated 07.10.2016, is barred by law and, therefore,
the trial court ought to have allowed the
application filed by the applicant under Order 7,
Rule 11 of the Code. It is always open for the
respondent no.1 - Charity Commissioner to file an
Appeal under Section 96(1) of the Code with leave
of the Appellate Court or to file review
application before the same Court, which has
passed the consent decree dated 07.10.2016,
however, separate suit challenging the consent
decree dated 07.10.2016 is not maintainable.
14. Therefore in view of the above, all these Civil
C/CRA/228/2021 JUDGMENT DATED: 06/10/2021
Revision Applications allowed. The impugned orders
in all Civil Revision Applications passed in
applications filed by the applicant under Order 7,
Rule 11 of the Code are hereby quashed and set
aside. Accordingly, the respective plaints filed
by the respondent no.1 - Charity Commissioner are
rejected. However, liberty is reserved to the
respondent no.1 - Charity Commissioner to file an
Appeal challenging the consent decree dated
07.10.2016 with leave of the Court and/or to file
review application as observed hereinabove before
the same Court. It is clarified that this Court
has not examined the merits of the case of the
applicant and, therefore, as and when the
respondent no.1 - Charity Commissioner files an
Appeal under Section 96(1) of the Code or Review
Application, same shall be decided on its own
merits. It is also clarified that all contentions
of the parties are kept open. Rule is made
absolute.
Sd/-
(VIPUL M. PANCHOLI, J.)
Gautam
