'
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2050-2053 OF 2013
[Arising out of SLP (Civil) Nos. 126-129 of 2012]
Mahalaxmi Co-operative Housing Society Ltd.& Etc.
..Appellants
Versus
Ashabhai Atmaram Patel (D) Th.Lrs
and Others .. Respondents
J U D G M E N T
K. S. Radhakrishnan, J.
1. Leave granted.
2. These appeals arise out of a common judgment rendered by a learned
single Judge of the High Court of Gujarat disposing of six special civil
applications of which we are concerned with the appeals preferred against
Special Civil Application Nos. 7088 of 2010, 10084 of 2009, 11925 of 2009
and 7087 of 2010. The learned single Judge, in exercise of his powers
under Articles 226 and 227 of the Constitution of India quashed the orders
dated 14.08.2008 and 08.09.2009 passed in Special Civil Suit No. 292/1993
and Special Civil Suit No. 681/1992 respectfully by the Learned Civil Judge
(SD) of Ahmadabad (Rural) and remanded the matter to the court, after
reviving the interim order dated 28.05.1993 passed in Civil Suit No.
292/1993.
3. Civil Suit No. 292 of 1993 was preferred by respondent No.4 -
Chandrakant Atmaram Patel and respondent nos. 1 to 5 herein (purchasers)
against respondent no. 6 - Bai Saraswati and the appellant herein -
Mahalaxmi Co-operative Housing Society Ltd. (for short 'Mahalaxmi Society')
for a declaration that sale deeds dated 5.6.1992 and 8.6.1992 were illegal
and also for an order of permanent injunction restraining the Mahalaxmi
Society from dealing with the lands and also for other consequential
reliefs. Chandrakant Atmaram Patel, plaintiff no. 1, plaintiff no. 2 are
the heirs of the deceased Baldevprasad (respondent nos. 5/1 and 5/2
herein), the plaintiff no. 3 are heirs of Manilal Bechardas (respondent
nos. 3/1 and 3/2 herein), plaintiff no. 4 is Ashabai Patel (since deceased)
and now through Legal Representatives - respondent nos. 1/1/A to 1/1/D) and
plaintiff no. 5 are heirs of Amrutlal Patel (respondent nos. 2/1, 2/2, 2/3
and 7 herein), along with the plaint filed an application for temporary
injunction, which was allowed vide order dated 28.5.1993. One Jankalyan Co-
operative Housing Society sought intervention in the suit Civil Suit No.
292/1993 on the basis of a registered Agreement to Sell dated 15.6.1992 and
joined as defendant no. 3. Civil Suit No. 681/1992 was also a suit filed
by respondent Nos. 1 to 5 against the Deputy Collector, the appellant
herein and the 6th respondent for an order of permanent injunction on the
ground that no permission under Section 63 of the Tenancy Act was obtained
before executing various sale deeds.
4. We have to trace the facts leading to the filing of the above suits
and the disputes cropped up thereafter between the original plaintiffs, Bai
Saraswati and the Mahalaxmi Society, leading to the filing of pursis dated
7.7.2008 and 18.09.2008 and the steps they have taken for resolving those
disputes in Civil Suit No. 292 of 1993 and Civil Suit No. 681/1992.
5. Bai Saraswati - respondent no. 6 herein - had executed two Sale
Deeds dated 27.10.1964 in respect of separate non-contiguous parcels of
lands in favour of five persons i.e. respondent nos. 1 to 5. Respondent
nos. 1 to 5 (purchasers) formed a partnership firm in the name of M/s
Arbuda Corporation on 4.3.1965 to deal with the above-mentioned properties
and each partner had equal share. M/s Arbuda Corporation on 15.9.1975
executed an Agreement to Sell in favour of the Mahalaxmi Society in respect
of the above-mentioned lands.
6. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short
'the ULC Act') came into force in 1976. M/s Arbuda Corporation and the
appellant Mahalaxmi Society jointly made an application under Section 20 of
the ULC Act seeking permission to execute the sale deed before the Deputy
Collector, Ahmadabad. Similar applications were also filed by the
appellant - Bai Saraswati and respondent No. 4 - Chandrakant Atmaram Patel.
On 7.1.1989, respondent nos. 5/1, 5/2 and 5/3, respondent nos. 3/1 and
3/2, respondent no. 1 (since deceased) and respondent no. 2 (since
deceased) executed a Power of Attorney in favour of respondent No. 4 -
Chandrakant Atmaram Patel in respect of the above-mentioned properties.
The power of attorney provided that the same would be binding on respondent
nos. 1, 2, 3 and 5 and their descendants, guardians and heirs. On
1.5.1991, Bai Saraswati executed an Agreement to Sell with possession of
the above-mentioned properties in favour of the Mahalaxmi Society.
Permission sought for under Section 20 of the ULC Act was also granted by
the authority on Bai Saraswati for dealing with the properties.
7. Bai Saraswati then executed two sale deeds dated 5.6.1992 and
8.6.1992 in favour of the Mahalaxmi Society in respect of the above-
mentioned properties, which lead to various disputes between the Mahalaxmi
Society, Bai Saraswati and the five purchasers mentioned earlier.
8. Respondent Nos. 1-5 then filed Special Civil Application No. 4413
of 1992 before the High Court against the Mahalaxmi Society and Bai
Saraswati and the State of Gujarat challenging the order dated 3.6.1992
passed under Section 20 of the ULC Act and that order was stayed, so also
the further proceedings thereto. Respondent Nos. 1-5, as plaintiffs, filed
Special Civil Suit no. 681 of 1992 against the Deputy Collector, Ahmadabad,
Mahalaxmi Society and Bai Saraswati on 31.07.1992 praying for an injunction
restraining the grant of permission under Section 63 of the Tenancy Act,
which was, however, granted on the same day. Consequently, Special Civil
Suit No. 681 of 1992 was later amended challenging the grant of permission.
9. As already stated, respondent Nos. 1 to 5 had also filed Civil Suit
No. 292/1993 on 04.05.1993 against Bai Saraswati and the Mahalaxmi Society
for a declaration that the sale deeds dated 05.06.1992 and 08.06.1992 were
illegal and also for other consequent reliefs. Bai Saraswati, later,
executed a sale deed dated 18.10.2000 in respect of the remaining survey
no. 216 in favour of the Mahalaxmi Society.
10. Plaintiffs, Bai Saraswati and Mahalaxmi Society, in view of the
various transactions entered into between various parties and the pending
litigations were exploring the possibility of settling all their disputes.
As a follow up, the Mahalaxmi Society, paid an amount of Rs.29,72,365/- to
the plaintiffs by various cheques and a Notarised Acknowledgement-cum-
Settlement receipt was also issued on 1.5.2004, which is reflected in the
registered Deed of Confirmation dated 1.5.2004 executed by Chandrakant
Atmaram Patel, the first plaintiff for and on behalf of other plaintiffs on
the strength of the power of attorney dated 7.01.1989. The first plaintiff
also executed a declaration-cum-indemnity of title on 09.11.2004 wherein it
was stated that the Mahalaxmi Society was the full, legal, proper and
absolute owner and possessor of the properties mentioned therein.
Plaintiffs had also agreed to cooperate in obtaining appropriate orders in
Special Civil Suit No. 681 of 1992 and Special Civil Suit No. 292 of 1993,
in view of the compromise and settlement.
11. Plaintiff no. 1 - Chandrakant Atmaram Patel had also executed
various documents individually. He executed a registered Deed of
Confirmation dated 10.11.2004, referring to the payment of Rs.29,72,365/-
by the Mahalaxmi Society. Reference was also made to the receipt dated
1.5.2004 and the registered Deed of Confirmation dated 1.5.2004
acknowledging the receipt of Rs.29,72,365/- from the Mahalaxmi Society by
plaintiff No. 1 as power of attorney holder for himself and on behalf of
the other plaintiffs as well. Registered articles of agreement dated
10.11.2004 also refer to a further payment of Rs.66,05,527/- by the
Mahalaxmi Society which was received by plaintiff No. 1 - Chandrakant
Atmaram Patel. Declaration-cum-indemnity of title was also made on
10.11.2004, wherein it was stated that Mahalaxmi Society had the full,
legal, proper and absolute owner and possessor of the above-mentioned
lands.
12. Plaintiff No. 2 - heirs of Baldevprasad Jamnadas - had individually
executed a registered Deed of Confirmation on 10.11.2004, referring to the
payment of Rs.29,72,365/- and proportionate payment of Rs.5,94,473/-. The
documents also refer to the Deed of Confirmation dated 01.05.2004.
Registered Article of Agreement dated 11.11.2004 executed by the plaintiff
No.2 also refers to a further payment of Rs.66,05,527/- made to the heirs
of Baldev Prasad Jamnadas. Declaration-cum-Indemnity of Title dated
10.11.2004 executed by them acknowledged that the Mahalaxmi Society was the
legal and absolute owner and was in possession of the properties.
13. Plaintiff Nos. 5/1 to 5/4, heirs of Amrutbhai Patel, had also
individually executed various documents. Registered Deed of Confirmation
dated 10.11.2004 executed by them also referred to the payment of
Rs.29,72,365/- and the proportionate payment of Rs.5,94,473/-. Registered
Articles of Agreement executed by them on the same day also referred to
further payment of Rs.66,05,527/-. Declaration-cum-Indemnity of Title
executed on 10.11.2004 also referred to the interest of appellant Mahalaxmi
Society.
14. Plaintiff Nos. 3/1, 3/2 and plaintiff No. 4, however, issued a
public notice on 5.12.2004 in the local newspapers (Gujarat Samachar and
Dainik Bhaskar) cancelling the power of attorney dated 7.1.1989 executed in
favour of plaintiff No. 1 - Chandrakant Patel. Mahalaxmi Society, through
their Solicitor, on 11.12.2004, issued a public notice in the local
newspaper (Sandesh) inviting claims/objections to the title of Mahalaxmi
Society. On 16.12.2004, plaintiff Nos. 3/1, 3/2 and plaintiff No. 4 gave
their replies.
15. Plaintiff No. 4 (who later expired on 2.6.2006) had also executed a
registered Deed of Confirmation on 5.1.2005, which acknowledged the payment
of Rs.29,72,365/-. In the registered Articles of Agreement dated
5.1.2005, plaintiff No. 4 had acknowledged the receipt of payment of an
additional amount of Rs.30,05,527/-. He had also referred to the interest
of Mahalaxmi Society in the Declaration-cum-Indemnity of Title executed on
the same day.
16. Plaintiff nos. 1, 2/2, 2/2, 4 and 5/1 to 5/4 (all plaintiffs,
except plaintiff No. 3) through their advocates published a notice in the
local newspapers (Sandesh, Gujarat Samachar, Divya Bhaskar) confirming the
above said facts as also the execution of documents. They had indicated
that it was after the execution of all the above said documents and receipt
of payments, plaintiff No. 4 had expired on 2.6.2006. Respondent nos.
1/1/A to 1/1/D, the legal heirs of plaintiff no. 4, it is seen, did not
take any steps to implead themselves as heirs in the two suits, namely,
Special Civil Suit No. 681 of 1992 and Civil Suit No. 292 of 1993.
Plaintiff No. 1 - Chandrakant Atmaram Patel - in the wake of the above-
mentioned facts and circumstances, prepared a pursis on 7.7.2008, the
operative portion of which reads as under:
"By filing following pursis, I, plaintiff declare before the Hon'ble
Court that outside court, amicable settlement has been arrived at
between me and defendants. I, plaintiff, admit Registered Sale
Deeds, bearing Sr. No. 13875, 13881, 1891, 13873, 13886 and 13896
dated 5/6/92 and All Registered Sale Deed No. 14034 dated 8/6/92 and
Registered Sale Deeds, Sr. No. 4024 and 4028, dated 18/10/2000
executed by original landlord, Bai Saraswari d/o Ashabhai Revandas
in favour of Mahalaxmi Co-0p. Housing Society Limited in respect of
suit property mentioned by the plaintiff in the suit application of
this case and in this regard, Registered Deeds of Agreement jointly
and separately. The said Registered Deeds of Agreement have been
produced, vide separate list, by us. The facts mentioned in the
said Registered Deeds of Agreement are proper, true and legal. As
stated in the said Deeds of Agreement, the ownership right and
possession of the said suit property have been received by Mahalaxmi
Co-op. Housing Society Limited. In the said suit property, I,
plaintiff, have no right, authority or possession. As per said
facts, I, plaintiff, unconditionally waive all contentions raised by
us in this suit and by undergoing cost of the said suit, I compound
the same.
Ahmedabad
Dated: 7/7/2008
Sd/-
(Chandrakant Atmaram
Patel)"
The same was filed before the Court. Defendant No. 3 and plaintiff Nos.
3/1 and 3/2 filed objections to the pursis on 31.7.2008. Plaintiff No. 1
- Chandrakant Atmaram Patel, on 13.9.2008, filed an affidavit before the
Court stating that the pursis was given in his individual capacity and in
his capacity of power of attorney holder of plaintiff Nos. 2, 4 and 5 and
produced the power of attorney dated 7.1.1989 before the trial court. The
trial court vide its order dated 14.8.2008 allowed the pursis (Ext.110) and
accorded permission to compound the suit. Pursuant to the above mentioned
settlement and compromise, a similar pursis dated 18.9.2008 (Ext 172) was
also filed in Special Civil Suit No. 681 of 1992, which was also disposed
of on 8.9.2009 accepting the same.
17. Plaintiff Nos. 3/1 and 3/2, as already stated, challenged the
judgment and order dated 14.8.2008 by filing Special Civil Application no.
10884 of 2009, under Articles 226 and 226 of the Constitution of India.
Plaintiff Nos. 3/1 and 3/2 also challenged the order dated 8.9.2009 by
filing Special Civil Application No. 11929 of 2009. The heirs of plaintiff
No. 4 also challenged the above-mentioned order by filing Special Civil
Application no. 7097 of 2010 and the heirs of the deceased plaintiff no. 4
also filed Special Civil Application no. 7087 of 2010. Heirs of plaintiff
No. 4 and plaintiff Nos. 5/1 and 5/2 also challenged the judgment and order
dated 8.9.2009 by filing Special Civil Application no. 7088 of 2010. The
High Court disposed of those applications by a common judgment on
19.12.2011, the legality of which is under challenge in these appeals.
18. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of
the appellant, at the outset, raised the question of maintainability of the
writ petitions filed before the High Court under Articles 226 and 227 of
the Constitution by the respondents, on the ground that the orders assailed
before the High Court dated 14.8.2008 and 08.09.2009 were the orders passed
by the trial Court in exercise of its powers conferred under the proviso to
Rule 3 of Order XXXIII of the Code of Civil Procedure (for short 'CPC').
Learned senior counsel submitted that, at best, the remedy available to the
respondents was to file an appeal under Section 96 read with Order XLIII
Rule 1A(2) and Order XLI CPC before the appellate Court. Learned senior
counsel submitted that the pursis was preferred under Order XXIII Rule 3
CPC and not under Order XXI Rule 1 CPC. Learned senior counsel submitted
that the order dated 14.8.2008 falls under the second part of Order XXIII
Rule 3 CPC and hence it would be sufficient that plaintiffs or the
plaintiffs' counsel appears before the Court and informs the Court that the
subject matter suit had been settled or satisfied. Learned senior counsel
also submitted that the heirs of the deceased plaintiff no. 4 and plaintiff
nos. 5/1, 5/2 and 5/4 could not have preferred the writ petitions under
Articles 226 and 227 of the Constitution of India, since the same could
have resulted in setting aside of the abetment which was contrary to law in
view of Order XXII CPC. Plaintiff No. 4 had died on 2.6.2006 and Civil
Suit no. 292 of 1993 had, as such, abated qua the deceased plaintiff no. 4.
Since the heirs, who are respondent nos. 1/1/A to 1/1/D, did not take any
steps to implead themselves as heirs either in Civil Suit No. 292 of 1993
or in Special Civil Suit No. 681 of 1992, on expiry of the period of
limitation under Articles 120 and 121 of the Limitation Act, those suits
stood abated qua plaintiff No. 4. The heirs of the deceased plaintiff no.
4 had not taken any steps for setting aside the abetment or to get them
substituted on the death of deceased plaintiff No. 4 in the various suits.
Further, it was also pointed out that plaintiff Nos. 5/1 to 5/4 had never
objected to the pursis dated 7.7.2008 and hence acquiesced to the order
dated 14.8.2008 and are estopped from challenging that order. Learned
senior counsel submitted that all disputes with plaintiff Nos. 3/1 and 3/2
were also settled during the pendency of these appeals and their objections
before the trial Court under Special Civil Application Nos. 10884 and 11925
of 2005 did not survive. Further, learned senior counsel also pointed out
that the power of attorney dated 7.1.1989 executed by respondent Nos. 5/1,
5/2 and 5/3, respondent Nos. 3/1 and 3/2, respondent No. 1 (since deceased)
and respondent No. 2 (since deceased) in favour of respondent No. 4 -
Chandrakant Atmaram Patel, was binding on respondent Nos. 1, 2, 3, 5 and
their descendants, guardians and heirs. Learned senior counsel also
submitted that, pending the Special Civil Application before the High
Court, building plans put up by Mahalaxmi Society for construction upon the
lands in question, were sanctioned by the competent authority and Mahalaxmi
Society had commenced the construction. Learned senior counsel submitted
that large amounts were paid by Mahalaxmi Society to the owners of the
properties and to the respondents and their representatives and they had
acknowledged the receipt of those amounts. The judgment of the High Court
has now unsettled the things which stood settled. Consequently, learned
senior counsel prayed that the appeals be allowed and the judgment of the
High Court be set aside.
19. Shri J.M. Patel, learned counsel appearing on behalf of the
contesting respondents, submitted that the High Court has rightly set aside
the order dated 14.8.2008 and directed the trial Court to take into
consideration the objections raised by the respondent herein and to re-hear
Exh. Nos. 110 and 172. Learned senior counsel submitted that the suit was
withdrawn without consent of plaintiff Nos. 5/1 to 5/4 by Chandrakant
Atmaram Patel. Further, it was pointed out that no documents were
produced before the trial Court pointing out that the above mentioned
plaintiffs had executed any document in favour of Mahalaxmi Society.
Learned senior counsel also pointed out that Bai Saraswati had
fraudulently, unauthorizedly and illegally made an application before the
authority for seeking permission under Section 63 of the Tenancy Act to
transfer the land in question in favour of Mahalaxmi Society. Following
that, two registered sale deeds dated 5.6.1992 and 8.6.1992 were executed
in favour Mahalaxmi Society, which is in clear violation of Section 63 of
the Tenancy Act read with Section 23 of the Contract Act. Learned senior
counsel also pointed out that the plaint in Civil Suit No. 292 of 1993 was
instituted in his individual capacity and not as a power of attorney holder
for rest of the plaintiffs. Learned senior counsel also pointed out that
Chandrakant Atmaram Patel on 15.5.2004 executed one registered document in
favour of Mahalaxmi Society, signed and executed for and on behalf of
Amrutbhai Ashabai Patel (heirs of Legal Representatives are plaintiff Nos.
5/1 to 5/4) and also signed on behalf of Bai Saraswati, who expired on
22.5.1992, before the institution of suit, on relying upon the power of
attorney dated 7.1.1989. Learned senior counsel pointed out that the
document executed in the name of and on behalf of dead persons and also for
the persons who had not authorized them to sign, such a document, according
to the learned senior counsel, could not have been produced before the
Court.
20. Learned senior counsel appearing on behalf of the contesting
respondents also submitted that the impugned order dated 14.8.2008 is not a
decree within the meaning of Section 2(2) CPC and hence, no appeal could
have been filed under Section 96 read with Order XLIII Rule 1(1) and Order
XLI CPC before the trial Court. Learned senior counsel also submitted that
the contents of the power of attorney dated 7.1.1989 do not empower
Chandrakant Atmaram Patel to withdraw the suits, compound the suits for and
on behalf of plaintiff Nos. 4 and 5 and the Court should not have allowed
the application withdrawing the suit. Learned senior counsel submitted
that the High Court has rightly set aside the order dated 14.8.2008 and
remanded the matter to the trial Court for fresh consideration and no
prejudice would be caused to the appellants, if the validity of Exts. 110
and 172 are re-examined. Learned senior counsel also submitted that this
Court, sitting in Article 136 of the Constitution of India, shall not
disturb the above finding of the High Court.
21. Dr. Rajeev Dhawan, learned senior counsel appearing for the
intervener submitted that the purchasers, landowner and/or their legal
heirs viz. Chandrakant Atmaram Patel had entered into an agreement dated
15.06.1992 with the intervener which was registered and hence it has right,
title and interest over the property in question. Further, it was also
pointed out that the intervener has already filed a suit RCS 783/2004 which
is pending consideration before the civil court and hence it has interest
in these proceedings. Learned senior counsel also submitted that the whole
matter should go back to the trial court so as to safeguard the interest of
the intervener.
22. We have already referred to the facts leading to the making of
pursis dated 7.7.2008 and 18.09.2008 by plaintiff No. 1 - Chandrakant
Atmaram Patel for himself and as power of attorney holder for others and
the orders passed thereon on 14.08.2008 and 08.09.2009 allowing the pursis
and compounding the suits Nos. 292/1993 and 681/1992.
23. Bai Saraswati, as already indicated, had executed two sale deeds
dated 27.10.1964 in respect of separate/non-contiguous parcels of land in
favour of respondent nos. 1 to 5. Schedule to that documents refer to the
survey numbers and properties sold. Respondent No. 1 to 5 (purchasers)
formed a partnership firm by name M/s Arbuda Corporation and they executed
an agreement to sell dated 15.9.1975 in favour of Mahalaxmi Society in
respect of the properties above-mentioned. Later, M/s Arbuda Corporation
and Mahalaxmi Society jointly made an application in the year 1976 under
Section 20 of the ULC Act. Similar applications were also filed by
Mahalaxmi Society, Bai Saraswai and respondent No. 4 - Chandrakant Atmaram
Patel. Respondent nos. 5/1, 5/2 and 5/3, respondent nos. 3/1 and 3/2,
respondent No. 1 (since deceased) and respondent No. 2 (since deceased) had
on 07.01.1989 executed a power of attorney before the Public Notarized
Civil Court, Ahmedabad city, in favour of respondent No. 4 - Chandrakant
Atmaram Patel in respect of properties mentioned earlier conferring
authority on him to deal their property for other plaintiffs and the same
would be binding on respondent Nos. 1, 2, 3, 5 and their descendants,
guardians and heirs. Bai Saraswati, after getting permission under the ULC
Act executed two sale deeds dated 5.6.1992 and 8.6.1992 in favour of
Mahalaxmi Society in respect of properties mentioned earlier.
24. We notice that disputes then cropped up between Mahalaxmi Society,
Bai Saraswati and respondent Nos. 1 to 5 (purchasers), which ultimately led
to the filing of Special Civil Suit No. 681 of 1992, the details of which
have already been stated in the earlier part of this judgment, hence not
reiterated. Respondent Nos. 1 to 5 as plaintiffs then filed Civil Suit No.
292 of 1993 against Bai Saraswati and Mahalaxmi Society on 4.5.1993 for a
declaration that sale deeds dated 5.6.1992 and 8.6.1992 are illegal and for
a permanent injunction restraining Mahalaxmi Society from dealing with the
lands. Plaint was signed by respondent No. 4 - Chandrakant Atmaram Patel,
plaintiff No. 2 who are heirs of deceased Baldevprasad (present respondent
Nos. 5/1 and 5/2), plaintiff no. 3 who are heirs of Manilal Patel (present
respondent Nos. 3/1 and 3/2), plaintiff No. 4 Ashabhai Patel (since
deceased) now through respondent Nos. 1/1/A to 1/1/D and plaintiff No. 5
who are heirs of Amrutlal Patel (present respondent Nos. 2/1, 2/2, 2/3 and
7). Contesting respondents, therefore, were duly represented in Civil
Suit No. 292 of 1993.
25. Bai Saraswati on 18.10.2000 executed a sale deed in respect of one
remaining survey No. 216 in favour of Mahalaxmi Society as well. While the
above mentioned suits were pending, efforts were made for settling the
entire disputes between parties, consequently, plaintiff No. 1 -
Chandrakant Atmaram Patel, for himself and as power of attorney holders for
other plaintiffs executed various documents and entered into various
transactions. Plaintiff No. 1 for and on behalf of other plaintiffs
received an amount of Rs.29,72,326/- made by Mahalaxmi Society by various
cheques, evidenced by the Notarized Acknowledgement-cum-Settlement Receipt
dated 1.5.2004. On the same day, a Deed of Confirmation was also
registered, which also refers to the above mentioned payment made by
Mahalaxmi Society to the plaintiffs. In the Declaration-cum-Indemnity of
Title dated 9.11.2004, it has been clearly stated that Mahalaxmi Society is
the full, legal, proper and absolute owner and possessor of the above
mentioned properties. Further, it is also provided in the said declaration
that the plaintiffs had agreed to co-operate in obtaining appropriate
orders from the Court in pending cases, including Special Civil Suit No.
681 of 1992 and Civil Suit No. 292 of 1993, in view of the compromise and
settlement. Though, at that stage, proportionate amount was given to
plaintiff No. 3, he did not encash the same. Above-mentioned are the
documents executed by plaintiff No. 1 for himself and on behalf of other
plaintiffs on the strength of the power of attorney dated 7.1.1989.
26. Plaintiff No. 1 individually also, apart from the above mentioned
documents, executed various other documents as well, which re-enforces and
re-confirms the above mentioned transactions entered into by Chandrakant
Atmaram Patel - as power of attorney holder for four other plaintiffs.
Plaintiff No. 1 executed a Registered Deed of Confirmation on 10.11.2004
which specifically refers to the payment of Rs.29,72,365/- by Mahalaxmi
Society. Deed also indicates that plaintiff no. 1 personally,
unconditionally an irrevocably without any reservation or restriction
whatsoever accepted, confirmed, acknowledged and admitted the Deed of
Confirmation dated 1.5.2004, which was executed by plaintiff no. 1 for
himself on behalf of other plaintiffs on the strength of the power of
attorney dated 7.1.1989. Registered Articles of Agreement executed on the
same day also refers to further payment of Rs.66,05,527/- being made to
plaintiff No. 1. The Declaration-cum-Indemnity of Title executed on the
same day also recognises that Mahalaxmi Society is in full, legal, proper
and absolute owner and possessor of the above mentioned lands.
27. Plaintiff No. 2, heirs of Baldevprasad Jamunadas, individually also
executed various documents, apart from the documents dated 1.5.2004 and
9.11.2004 executed by plaintiff No. 1 on the strength of the power of
attorney, representing plaintiff No. 2 as well. Plaintiff no. 2 executed,
on 11.11.2004, a Registered Deed of Confirmation acknowledging the payment
of Rs.29,72,365/- of the Mahalaxmi Society and proportionate payment of
Rs.5,94,473/-. Plaintiff No. 2 in the said deed of confirmation,
personally, unconditionally and irrevocably without any reservation or
restriction whatsoever accepted, confirmed, acknowledged and admitted the
deed of confirmation dated 1.5.2004 executed by plaintiff no. 1 on his
behalf and on behalf of other plaintiffs. Registered Articles of Agreement
dated 11.11.2004 also recognises the further payment of Rs.66,05,527/-.
Declaration-cum-Indemnity of Title made on the same day also indicates that
Mahalaxmi Society is the full, legal, proper and absolute owner and
possessor of the above mentioned lands.
28. Plaintiff Nos. 5/1, 5/2, 5/3 and 5/4 - heirs of Amrutlal Patel had
also individually executed various documents. Registered Deed of
Confirmation dated 10.11.2004 refers to the payment of Rs.29,72,365/- by
the Mahalaxmi Society and the proportionate payment of Rs.5,94,473/-.
Plaintiff Nos. 5/1, 5/2, 5/3 and 5/4, in the said deed of confirmation has
personally, unconditionally an irrevocable without any reservation or
restriction whatsoever accepted, confirmed, acknowledged and admitted the
deed of confirmation dated 1.5.2004 executed by plaintiff No. 1 on the
strength of the power of attorney dated 7.1.1989. Registered Articles of
Agreement dated 10.11.2004 also refers to further payment of Rs,66,05,527/-
being made to plaintiff Nos. 5/1, 5/2, 5/3 and 5/4. Declaration-cum-
Indemnity of Title of the same date would also indicate that Mahalaxmi
Society is the full, legal, proper and absolute owner and possessor of the
above mentioned lands.
29. Plaintiff No. 4 had also individually, in addition to the documents
dated 1.5.2004 and 19.11.2004 executed by plaintiff No. 1, executed a
Registered Deed of Confirmation dated 5.1.2005 acknowledging the payment of
Rs.29,72,365/-. In that deed also, plaintiff No. 4 has personally,
unconditionally and irrevocably without any reservation or restriction
whatsoever accepted, confirmed, acknowledged and admitted the deed of
confirmation dated 1.5.2004 executed by plaintiff No. 1. Plaintiff no. 4
had also, vide Registered Articles of Agreement, acknowledged the receipt
of the additional payment of Rs.30,05,527/- on the same day. Declaration-
cum-Indemnity of Title dated 5.1.2005 also acknowledges that Mahalaxmi
Society is the full, legal, proper and absolute owner and possessor of the
above mentioned lands.
30. Above facts would clearly indicate that plaintiff No. 1 on 5.1.2005
had executed documents as the power of attorney holder and also on his
individually capacity, plaintiff Nos. 2/1, 2/2, plaintiff No. 4 and
plaintiff Nos. 5/1, 5/2 and 5/4 had also executed documents and settlement
acknowledging the receipt of payments made by Mahalaxmi Society and also
acknowledging that Mahalaxmi Society is the full, legal, proper and
absolute owner and possessor of the above mentioned properties. Further,
on 9.11.2005, plaintiff Nos. 1, 2/1, 2/2, 4 and 5/1 to 5/4, through their
advocate, published a notice in the local newspaper confirming the above
mentioned facts and also the execution of the documents, thereby
acknowledging that Mahalaxmi Society is the true, full, legal, proper and
absolute owner and possessor of the above mentioned properties.
31. Plaintiff Nos. 3/1, 3/2 and plaintiff no. 4, however, had issued a
public notice dated 05.12.2004 in the local newspapers, cancelling the
power of attorney dated 7.1.1989 executed in favour of plaintiff No. 1 -
Chandrakant Atmaram Patel. Plaintiff no. 4, after having executed the
aforesaid documents in his individual capacity and after receipt of all the
payments as per the aforesaid documents from the Mahalaxmi Society expired
on 2.6.2006. During his lifetime, he had not disputed any of the above
mentioned documents or their contents. The legal heirs of plaintiff No.
4, i.e. plaintiff Nos. 1/1/A to 1/1/D had also not raised any dispute. On
the death of plaintiff No. 4, they also did not take any steps to get them
impleaded as the heirs of plaintiff No. 4 in Special Civil Suit no. 681 of
1992 or in Civil Suit No. 292 of 1993, consequently, on the expiry of the
period of limitation, the suits stood abated, qua plaintiff No. 4.
32. We have found that pursuant to the execution of various documents,
referred to hereinbefore, by plaintiff No. 1 - Chandrakant Atmaram Patel,
for himself and on behalf of the other plaintiffs, as well as plaintiff no.
1 individually, plaintiff No. 2, plaintiff Nos. 5/1, 5/2, 5/3 and 5/4,
plaintiff No. 4 individually, and after having received the amounts
mentioned therein from the appellant - Mahalaxmi Society, decided to record
the compromise in both suits, since all the disputes between them were
settled and they had acknowledged that Mahalaxmi Society is the full,
legal, proper and absolute owner and possessor of the lands in question.
Consequently, plaintiff no. 1, on his behalf and on behalf of the other
plaintiffs, except plaintiff Nos. 3/1 and 3/2, prepared a pursis dated
7.7.2008, referring to the sale deeds dated 08.06.1992 and 18.10.2000
executed in favour of the Mahalaxmi Society in respect of all the
properties in question stating that the plaintiffs have unconditionally
given up all the claims raised in the suit and have settled the issues with
the Mahalaxmi Society. The same was then presented before the trial Court.
Plaintiff Nos. 3/1 and 3/2 and defendant No. 3 - Jankalyan Society,
however endorsed their objection to the pursis on 31.07.2008. Plaintiff
No. 1 filed an affidavit on 13.8.2008 stating that the pursis was given in
his individual capacity and as the power of attorney holder of plaintiff
Nos. 2, 4 and 5. The trial Court, after hearing plaintiff nos. 3/1, 3/2
and defendant no. 3 (intervener), came to the conclusion that plaintiff
Nos. 3/1 and 3/2 had cancelled the power of attorney only on 3.12.2004,
whereas the Deeds of Confirmation were executed prior thereto, and that
defendant No. 3 claim rested only on an agreement to sell, and could not
enjoy any right under the Transfer of Property Act and, thereby, allowed
the pursis and disposed of the suit (Special Civil Suit no. 292 of 1993) on
14.8.2008. Following that, Civil Suit No. 681 of 1992 was also disposed
of on 8.9.2009.
33. We may indicate that the documents referred to earlier, executed by
the plaintiff No. 1 for himself and as a power of attorney holder for
others and the acknowledgment deed; Declaration-cum-indemnity bonds, deeds
of confirmation etc. executed by the plaintiff No.2, heirs of Baldev
Prasad, plaintiff Nos. 5/1, 5/2, 5/3 and 5/4, plaintiff No. 4 etc. would
clearly show that they had received large amounts from the Mahalaxmi
Society and had acknowledged that the Mahalaxmi Society was the full, legal
, proper and absolute owner and the possession of the property covered by
the sale deeds dated 05.06.1992 and 08.06.1992. Plaintiff Nos. 3/1 and
3/2, though later, challenged the judgment and order dated 14.8.2008, after
more than one year, while pending these appeals, they also settled the
matter with Mahalaxmi Society and accepted all the arguments raised by
Mahalaxmi Society in this appeals.
34. Defendant No. 3 - Jankalyan Co-operative Group Housing Society
(present intervener) had never independently challenged the order dated
14.8.208 of the trial Court, consequently the order is binding on defendant
No. 3.
35. We are now left with the objections raised by the heirs of the
deceased plaintiff No. 4 and plaintiff Nos. 5/1 to 5/4. The heirs of
deceased plaintiff No. 4 and plaintiff Nos. 5/1, 5/2 and 5/4 challenged the
judgment and order dated 14.8.2008 only on 1.3.2010, more than one year and
six months later, by filing Special Civil Application no. 7087 of 2010.
The documents referred to earlier clearly indicate that they had received
large amounts from Mahalaxmi Society and the heirs of the deceased
plaintiff no. 4 did not take any steps to get them recorded in the Civil
Suit after the death of the plaintiff No. 4, so far as this case is
concerned, the suit had abated. The heirs of plaintiff No. 4 and plaintiff
Nos. 5/1, 5/2 and 5/4 also challenged the judgment and order dated 8.9.2009
in Civil Suit No. 681 of 1992 only on 1.3.2011 by filing Special Civil
Application No. 7088 of 2010. Plaintiff No. 4, we have already indicated,
was duly represented by plaintiff No. 1 - Chandrakant Atmaram Patel while
executing the various registered documents and issuing Acknowledgement-cum-
Settlement Receipts by which large amounts were received by plaintiff No.
1, representing plaintiff no. 4. Over and above, plaintiff No. 4 himself
had executed various registered deed of confirmation dated 5.1.2005
acknowledging the receipt of Rs.29,32,365/- and also Rs.30,05,527/-. We
are of the view that the legal heirs of plaintiff no. 4 now cannot come
forward and question the various documents executed by plaintiff No. 4,
especially when they had not taken any steps to get them impleaded in both
the civil suits. Impugned orders passed on 14.8.2008 and 8.9.2009,
therefore, would bind them. Plaintiff Nos. 5/1 to 5/4 had also not
objected to the execution of various deeds and documents ratified all the
actions taken by plaintiff No.1, as power of attorney holder, since they
had not objected to the pursis dated 07.07.2008, and hence acquiesced to
the order dated 14.08.2008.
36. We may now examine whether the impugned order would fall under
Rule 3 of Order XXIII or Rule 1 of Order XXIII of the CPC, the said
provisions are given below for easy reference:
ORDER XXIII. WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim
(1) At any time after the institution of a suit, the plaintiff may
as against all or any of the defendants abandon his suit or abandon
a part of his claim:
Provided that where the plaintiff is a minor or other person to
whom the provisions contained in rules 1 to 14 of Order XXXII
extend, neither the suit nor any part of the claim shall be
abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1)
shall be accompanied by an affidavit of the next friend and also,
if the minor or such other person is represented by a pleader, by a
certificate of the pleader to the effect that the abandonment
proposed is, in his opinion, for the benefit of the minor or such
other person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of
a claim, it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of the claim. (4) Where
the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3),
he shall be liable for such costs as the Court may award and shall
be preclude from instituting any fresh suit in respect of such
subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to
permit one of several plaintiffs to abandon a suit or part of a
claim under sub-rule (1), or to withdraw, under sub-rule (3), any
suit or part of a claim, without the consent of the other
plaintiffs.
"ORDER XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS-
(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 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."
Rule 1 of Order XXIII speaks of withdrawal of suit or abandonment of part
of claim. Rule 1 of Order XXIII covers two types of cases (i) Where the
plaintiff withdraws a suit or part of a claim with the permission of the
Court to bring in fresh suit on the same subject matter and (ii) Where the
plaintiff withdraws a suit without the permission of the Court.
Rule 3 of Order XXIII, on the other hand, speaks of compromise of suit.
Rule 3 of Order XXIII refers to distinct classes of compromise in suits.
The first part refers to lawful agreement or compromise arrived at by the
parties out of court, which is under 1976 amendment of the CPC required to
be in writing and signed by the parties. The second part of Rule deals
with the cases where the defendant satisfies the plaintiff in respect of
whole or a part of the suit claim which is different from first part of
Rule 3. The expression 'agreement' or 'compromise' refer to first part and
not the second part of Rule 3. The second part gives emphasis to the
expression 'satisfaction'.
37. In Pushpa Devi V. Rajinder Singh, (2006) 5 SCC 566, this court has
recognised that the distinction deals with the distinction between the
first part and the second part.
"What is the difference between the first part and second part of Rule
3?
The first part refers to situations where an agreement or
compromise is entered into in writing and signed by the parties.
The
said agreement or compromise is placed before the court. When the
court is satisfied that the suit has been adjusted either wholly or in
part by such agreement, or compromise in writing and signed by the
parties and that it is lawful, a decree follows in terms of what is
agreed between the parties.
The agreement/compromise spells out the
agreed terms by which the claim is admitted or adjusted by mutual
concessions or promises, so that the parties thereto can be held to
their promise(s) in future and performance can be enforced by the
execution of the decree to be passed in terms of it.
On the other
hand, the second part refers to cases where the defendant has
satisfied the plaintiff about the claim.
This may be by satisfying
the plaintiff that his claim cannot be or need not be met or
performed.
It can also be by discharging or performing the required
obligation.
Where the defendant so 'satisfied' the plaintiff in
respect of the subject-matter of the suit, nothing further remains to
be done or enforced and there is no question of any 'enforcement' or
'execution' of the decree to be passed in terms of it."
38-39. Further, it is relevant to note the word 'satisfaction' has been
used in contradistinction to the word 'adjustment' by agreement or
compromise by the parties.
The requirement of 'in writing and signed by
the parties' does not apply to the second part where the defendant
satisfies the plaintiff in respect of whole or part of the subject-matter
of the suit.
40. The proviso to Rule 3 as inserted by the Amendment Act 1976 enjoins
the court to decide the question where one party alleges that the matter is
adjusted by an agreement or compromise but the other party denies the
allegation. The court is, therefore, called upon to decide the lis one way
or the other. The proviso expressly and specifically states that the court
shall not grant such adjournment for deciding the question unless it thinks
fit to grant such adjournment by recording reasons.
41. So far as the present case is concerned, pursis falls under Order
XXIII, Rule 3 since the defendant has satisfied the plaintiffs in respect
of whole of the subject-matter of the suit. Since objections were raised
by plaintiff No.3 and defendant No. 3, those objections had to be dealt
with by the court in accordance with Order XXIII, Rule 3. The proviso to
Order XXIII, Rule 3 cast an obligation on the court to decide that question
at the earliest, without giving undue adjournments. Objections raised by
plaintiff No. 3 and defendant No.3 were examined by the court and rejected,
in our view, rightly. Cogent reasons have been stated by the court while
rejecting their objections and accepting the pursis.
42. We have also found that the heirs of plaintiff No. 4 did not took
steps to record themselves in Civil Suit No. 292/1993 till the same was
disposed of and hence, as per the provisions of Articles 120 and 121 of the
Limitation Act, suit stood abated qua plaintiff No. 4. No steps had been
taken to set aside the abatement as well. We have also on facts found that
the plaintiff No. 4 during his life time executed various documents
acknowledging the amounts paid by the Mahalaxmi Society. Plaintiff No. 3,
though objected to pursis, later plaintiff Nos. 3/1 and 3/2 have settled
disputes and adopted the contention of the Mahalaxmi Society.
43. We are also not much impressed by the argument of the learned
senior counsel appearing for the respondent that the trial court has
committed an error in not consolidating the various suits including Civil
Suits No. 292/1993 and 681/1992 to be tried together as ordered by the
District Court in its order dated 29.08.2006 in Civil Misc. Application No.
16/2005.
Section 24 of the CPC only provides for transfer of any suit from
one court to another.
The court has not passed an order of consolidating
all the suits.
There is no specific provision in the CPC for consolidation
of suits. Such a power has to be exercised only under Section 151 of the
CPC. The purpose of consolidation of suits is to save costs, time and
effort and to make the conduct of several actions more convenient by
treating them as one action. Consolidation of suits is ordered for meeting
the ends of justice as it saves the parties from multiplicity of
proceedings, delay and expenses and the parties are relieved of the need of
adducing the same or similar documentary and oral evidence twice over in
the two suits at two different trials. Reference may be made to the
judgment of this Court in Prem Lala Nahata and Anr. v. Chandi Prasad
Sikaria (2007) 2 SCC 551.
44. The transfer of the suits from one court to another to be tried
together will not take away the right of the parties to invoke Order XXIII
Rule 3 and there is also no prohibition under Order XXIII Rule 3 or Section
24 of the CPC to record a compromise in one suit. Suits always retain
their independent identity and even after an order of consolidation, the
court is not powerless to dispose of any suit independently once the
ingredients of Order XXIII, Rule 3 has been satisfied.
45. We are, therefore, of the view that so far as the instant case is
concerned, there is no illegality in the orders passed by the trial court
disposing of the suit under Order XXIII, Rule 3 of the CPC accepting the
pursis dated 07.07.2008 and 18.09.2008. The High Court, in our view, was
not right in upsetting the orders dated 14.08.2008 and 08.09.2009 in
Special Civil Suit Nos. 292/1993 and 681/1992. Consequently, all these
appeals are allowed and the common judgment of the High Court is,
accordingly, set aside. However, there will be no order as to costs.
........................J.
(K.S. Radhakrishnan)
........................J.
(Dipak Misra)
New Delhi,
March 1, 2013
ITEM NO.1A(For Judgment) COURT NO.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
C.A. Nos...........................................@
Petition(s) for Special Leave to Appeal (Civil) No(s).126-129/2012
(From the judgement and order dated 19/12/2011 in SCA No.10884/2009,SCA
No.11925/2009,SCA No.7087/2010,SCA No.7088/2010 of The HIGH COURT OF
GUJARAT AT AHMEDABAD)
MAHALAXMI COOP.HOUS.SOC.LTD.& ETC. Appellant(s)
VERSUS
ASHABHAI ATMARAM PATEL(D) TR.LRs.& ORS. Respondent(s)
Date: 01/03/2013 These appeals were called on for
pronouncement of judgment.
For Petitioner(s) Mr. E.C. Agrawala,AOR
For Respondent(s) Mr. Siddhartha Jha,Adv.
Mr. V.K. Monga,AOR
Mrs. V.D. Khanna,AOR
Mr. Hari Shankar K.,AOR
Mr. Dharmendra Kumar Sinha,AOR
Mr. J.M. Patel,Adv.
Mr. Jayraj Chauhan,Adv.
Hon'ble Mr. Justice K.S. Radhakrishnan pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr.
Justice Dipak Misra.
Leave granted.
Application for intervention is allowed.
Application for bringing heirs and legal representatives on
record of deceased Chandrakant Atmaram Patel is allowed.
The appeals are allowed in terms of the signed reportable
judgment.
|(NARENDRA PRASAD) | |(RENUKA SADANA) |
|COURT MASTER | |COURT MASTER |
(Signed reportable judgment is placed on the file)
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2050-2053 OF 2013
[Arising out of SLP (Civil) Nos. 126-129 of 2012]
Mahalaxmi Co-operative Housing Society Ltd.& Etc.
..Appellants
Versus
Ashabhai Atmaram Patel (D) Th.Lrs
and Others .. Respondents
J U D G M E N T
K. S. Radhakrishnan, J.
1. Leave granted.
2. These appeals arise out of a common judgment rendered by a learned
single Judge of the High Court of Gujarat disposing of six special civil
applications of which we are concerned with the appeals preferred against
Special Civil Application Nos. 7088 of 2010, 10084 of 2009, 11925 of 2009
and 7087 of 2010. The learned single Judge, in exercise of his powers
under Articles 226 and 227 of the Constitution of India quashed the orders
dated 14.08.2008 and 08.09.2009 passed in Special Civil Suit No. 292/1993
and Special Civil Suit No. 681/1992 respectfully by the Learned Civil Judge
(SD) of Ahmadabad (Rural) and remanded the matter to the court, after
reviving the interim order dated 28.05.1993 passed in Civil Suit No.
292/1993.
3. Civil Suit No. 292 of 1993 was preferred by respondent No.4 -
Chandrakant Atmaram Patel and respondent nos. 1 to 5 herein (purchasers)
against respondent no. 6 - Bai Saraswati and the appellant herein -
Mahalaxmi Co-operative Housing Society Ltd. (for short 'Mahalaxmi Society')
for a declaration that sale deeds dated 5.6.1992 and 8.6.1992 were illegal
and also for an order of permanent injunction restraining the Mahalaxmi
Society from dealing with the lands and also for other consequential
reliefs. Chandrakant Atmaram Patel, plaintiff no. 1, plaintiff no. 2 are
the heirs of the deceased Baldevprasad (respondent nos. 5/1 and 5/2
herein), the plaintiff no. 3 are heirs of Manilal Bechardas (respondent
nos. 3/1 and 3/2 herein), plaintiff no. 4 is Ashabai Patel (since deceased)
and now through Legal Representatives - respondent nos. 1/1/A to 1/1/D) and
plaintiff no. 5 are heirs of Amrutlal Patel (respondent nos. 2/1, 2/2, 2/3
and 7 herein), along with the plaint filed an application for temporary
injunction, which was allowed vide order dated 28.5.1993. One Jankalyan Co-
operative Housing Society sought intervention in the suit Civil Suit No.
292/1993 on the basis of a registered Agreement to Sell dated 15.6.1992 and
joined as defendant no. 3. Civil Suit No. 681/1992 was also a suit filed
by respondent Nos. 1 to 5 against the Deputy Collector, the appellant
herein and the 6th respondent for an order of permanent injunction on the
ground that no permission under Section 63 of the Tenancy Act was obtained
before executing various sale deeds.
4. We have to trace the facts leading to the filing of the above suits
and the disputes cropped up thereafter between the original plaintiffs, Bai
Saraswati and the Mahalaxmi Society, leading to the filing of pursis dated
7.7.2008 and 18.09.2008 and the steps they have taken for resolving those
disputes in Civil Suit No. 292 of 1993 and Civil Suit No. 681/1992.
5. Bai Saraswati - respondent no. 6 herein - had executed two Sale
Deeds dated 27.10.1964 in respect of separate non-contiguous parcels of
lands in favour of five persons i.e. respondent nos. 1 to 5. Respondent
nos. 1 to 5 (purchasers) formed a partnership firm in the name of M/s
Arbuda Corporation on 4.3.1965 to deal with the above-mentioned properties
and each partner had equal share. M/s Arbuda Corporation on 15.9.1975
executed an Agreement to Sell in favour of the Mahalaxmi Society in respect
of the above-mentioned lands.
6. The Urban Land (Ceiling and Regulation) Repeal Act, 1999 (for short
'the ULC Act') came into force in 1976. M/s Arbuda Corporation and the
appellant Mahalaxmi Society jointly made an application under Section 20 of
the ULC Act seeking permission to execute the sale deed before the Deputy
Collector, Ahmadabad. Similar applications were also filed by the
appellant - Bai Saraswati and respondent No. 4 - Chandrakant Atmaram Patel.
On 7.1.1989, respondent nos. 5/1, 5/2 and 5/3, respondent nos. 3/1 and
3/2, respondent no. 1 (since deceased) and respondent no. 2 (since
deceased) executed a Power of Attorney in favour of respondent No. 4 -
Chandrakant Atmaram Patel in respect of the above-mentioned properties.
The power of attorney provided that the same would be binding on respondent
nos. 1, 2, 3 and 5 and their descendants, guardians and heirs. On
1.5.1991, Bai Saraswati executed an Agreement to Sell with possession of
the above-mentioned properties in favour of the Mahalaxmi Society.
Permission sought for under Section 20 of the ULC Act was also granted by
the authority on Bai Saraswati for dealing with the properties.
7. Bai Saraswati then executed two sale deeds dated 5.6.1992 and
8.6.1992 in favour of the Mahalaxmi Society in respect of the above-
mentioned properties, which lead to various disputes between the Mahalaxmi
Society, Bai Saraswati and the five purchasers mentioned earlier.
8. Respondent Nos. 1-5 then filed Special Civil Application No. 4413
of 1992 before the High Court against the Mahalaxmi Society and Bai
Saraswati and the State of Gujarat challenging the order dated 3.6.1992
passed under Section 20 of the ULC Act and that order was stayed, so also
the further proceedings thereto. Respondent Nos. 1-5, as plaintiffs, filed
Special Civil Suit no. 681 of 1992 against the Deputy Collector, Ahmadabad,
Mahalaxmi Society and Bai Saraswati on 31.07.1992 praying for an injunction
restraining the grant of permission under Section 63 of the Tenancy Act,
which was, however, granted on the same day. Consequently, Special Civil
Suit No. 681 of 1992 was later amended challenging the grant of permission.
9. As already stated, respondent Nos. 1 to 5 had also filed Civil Suit
No. 292/1993 on 04.05.1993 against Bai Saraswati and the Mahalaxmi Society
for a declaration that the sale deeds dated 05.06.1992 and 08.06.1992 were
illegal and also for other consequent reliefs. Bai Saraswati, later,
executed a sale deed dated 18.10.2000 in respect of the remaining survey
no. 216 in favour of the Mahalaxmi Society.
10. Plaintiffs, Bai Saraswati and Mahalaxmi Society, in view of the
various transactions entered into between various parties and the pending
litigations were exploring the possibility of settling all their disputes.
As a follow up, the Mahalaxmi Society, paid an amount of Rs.29,72,365/- to
the plaintiffs by various cheques and a Notarised Acknowledgement-cum-
Settlement receipt was also issued on 1.5.2004, which is reflected in the
registered Deed of Confirmation dated 1.5.2004 executed by Chandrakant
Atmaram Patel, the first plaintiff for and on behalf of other plaintiffs on
the strength of the power of attorney dated 7.01.1989. The first plaintiff
also executed a declaration-cum-indemnity of title on 09.11.2004 wherein it
was stated that the Mahalaxmi Society was the full, legal, proper and
absolute owner and possessor of the properties mentioned therein.
Plaintiffs had also agreed to cooperate in obtaining appropriate orders in
Special Civil Suit No. 681 of 1992 and Special Civil Suit No. 292 of 1993,
in view of the compromise and settlement.
11. Plaintiff no. 1 - Chandrakant Atmaram Patel had also executed
various documents individually. He executed a registered Deed of
Confirmation dated 10.11.2004, referring to the payment of Rs.29,72,365/-
by the Mahalaxmi Society. Reference was also made to the receipt dated
1.5.2004 and the registered Deed of Confirmation dated 1.5.2004
acknowledging the receipt of Rs.29,72,365/- from the Mahalaxmi Society by
plaintiff No. 1 as power of attorney holder for himself and on behalf of
the other plaintiffs as well. Registered articles of agreement dated
10.11.2004 also refer to a further payment of Rs.66,05,527/- by the
Mahalaxmi Society which was received by plaintiff No. 1 - Chandrakant
Atmaram Patel. Declaration-cum-indemnity of title was also made on
10.11.2004, wherein it was stated that Mahalaxmi Society had the full,
legal, proper and absolute owner and possessor of the above-mentioned
lands.
12. Plaintiff No. 2 - heirs of Baldevprasad Jamnadas - had individually
executed a registered Deed of Confirmation on 10.11.2004, referring to the
payment of Rs.29,72,365/- and proportionate payment of Rs.5,94,473/-. The
documents also refer to the Deed of Confirmation dated 01.05.2004.
Registered Article of Agreement dated 11.11.2004 executed by the plaintiff
No.2 also refers to a further payment of Rs.66,05,527/- made to the heirs
of Baldev Prasad Jamnadas. Declaration-cum-Indemnity of Title dated
10.11.2004 executed by them acknowledged that the Mahalaxmi Society was the
legal and absolute owner and was in possession of the properties.
13. Plaintiff Nos. 5/1 to 5/4, heirs of Amrutbhai Patel, had also
individually executed various documents. Registered Deed of Confirmation
dated 10.11.2004 executed by them also referred to the payment of
Rs.29,72,365/- and the proportionate payment of Rs.5,94,473/-. Registered
Articles of Agreement executed by them on the same day also referred to
further payment of Rs.66,05,527/-. Declaration-cum-Indemnity of Title
executed on 10.11.2004 also referred to the interest of appellant Mahalaxmi
Society.
14. Plaintiff Nos. 3/1, 3/2 and plaintiff No. 4, however, issued a
public notice on 5.12.2004 in the local newspapers (Gujarat Samachar and
Dainik Bhaskar) cancelling the power of attorney dated 7.1.1989 executed in
favour of plaintiff No. 1 - Chandrakant Patel. Mahalaxmi Society, through
their Solicitor, on 11.12.2004, issued a public notice in the local
newspaper (Sandesh) inviting claims/objections to the title of Mahalaxmi
Society. On 16.12.2004, plaintiff Nos. 3/1, 3/2 and plaintiff No. 4 gave
their replies.
15. Plaintiff No. 4 (who later expired on 2.6.2006) had also executed a
registered Deed of Confirmation on 5.1.2005, which acknowledged the payment
of Rs.29,72,365/-. In the registered Articles of Agreement dated
5.1.2005, plaintiff No. 4 had acknowledged the receipt of payment of an
additional amount of Rs.30,05,527/-. He had also referred to the interest
of Mahalaxmi Society in the Declaration-cum-Indemnity of Title executed on
the same day.
16. Plaintiff nos. 1, 2/2, 2/2, 4 and 5/1 to 5/4 (all plaintiffs,
except plaintiff No. 3) through their advocates published a notice in the
local newspapers (Sandesh, Gujarat Samachar, Divya Bhaskar) confirming the
above said facts as also the execution of documents. They had indicated
that it was after the execution of all the above said documents and receipt
of payments, plaintiff No. 4 had expired on 2.6.2006. Respondent nos.
1/1/A to 1/1/D, the legal heirs of plaintiff no. 4, it is seen, did not
take any steps to implead themselves as heirs in the two suits, namely,
Special Civil Suit No. 681 of 1992 and Civil Suit No. 292 of 1993.
Plaintiff No. 1 - Chandrakant Atmaram Patel - in the wake of the above-
mentioned facts and circumstances, prepared a pursis on 7.7.2008, the
operative portion of which reads as under:
"By filing following pursis, I, plaintiff declare before the Hon'ble
Court that outside court, amicable settlement has been arrived at
between me and defendants. I, plaintiff, admit Registered Sale
Deeds, bearing Sr. No. 13875, 13881, 1891, 13873, 13886 and 13896
dated 5/6/92 and All Registered Sale Deed No. 14034 dated 8/6/92 and
Registered Sale Deeds, Sr. No. 4024 and 4028, dated 18/10/2000
executed by original landlord, Bai Saraswari d/o Ashabhai Revandas
in favour of Mahalaxmi Co-0p. Housing Society Limited in respect of
suit property mentioned by the plaintiff in the suit application of
this case and in this regard, Registered Deeds of Agreement jointly
and separately. The said Registered Deeds of Agreement have been
produced, vide separate list, by us. The facts mentioned in the
said Registered Deeds of Agreement are proper, true and legal. As
stated in the said Deeds of Agreement, the ownership right and
possession of the said suit property have been received by Mahalaxmi
Co-op. Housing Society Limited. In the said suit property, I,
plaintiff, have no right, authority or possession. As per said
facts, I, plaintiff, unconditionally waive all contentions raised by
us in this suit and by undergoing cost of the said suit, I compound
the same.
Ahmedabad
Dated: 7/7/2008
Sd/-
(Chandrakant Atmaram
Patel)"
The same was filed before the Court. Defendant No. 3 and plaintiff Nos.
3/1 and 3/2 filed objections to the pursis on 31.7.2008. Plaintiff No. 1
- Chandrakant Atmaram Patel, on 13.9.2008, filed an affidavit before the
Court stating that the pursis was given in his individual capacity and in
his capacity of power of attorney holder of plaintiff Nos. 2, 4 and 5 and
produced the power of attorney dated 7.1.1989 before the trial court. The
trial court vide its order dated 14.8.2008 allowed the pursis (Ext.110) and
accorded permission to compound the suit. Pursuant to the above mentioned
settlement and compromise, a similar pursis dated 18.9.2008 (Ext 172) was
also filed in Special Civil Suit No. 681 of 1992, which was also disposed
of on 8.9.2009 accepting the same.
17. Plaintiff Nos. 3/1 and 3/2, as already stated, challenged the
judgment and order dated 14.8.2008 by filing Special Civil Application no.
10884 of 2009, under Articles 226 and 226 of the Constitution of India.
Plaintiff Nos. 3/1 and 3/2 also challenged the order dated 8.9.2009 by
filing Special Civil Application No. 11929 of 2009. The heirs of plaintiff
No. 4 also challenged the above-mentioned order by filing Special Civil
Application no. 7097 of 2010 and the heirs of the deceased plaintiff no. 4
also filed Special Civil Application no. 7087 of 2010. Heirs of plaintiff
No. 4 and plaintiff Nos. 5/1 and 5/2 also challenged the judgment and order
dated 8.9.2009 by filing Special Civil Application no. 7088 of 2010. The
High Court disposed of those applications by a common judgment on
19.12.2011, the legality of which is under challenge in these appeals.
18. Mr. Mukul Rohatgi, learned senior counsel appearing on behalf of
the appellant, at the outset, raised the question of maintainability of the
writ petitions filed before the High Court under Articles 226 and 227 of
the Constitution by the respondents, on the ground that the orders assailed
before the High Court dated 14.8.2008 and 08.09.2009 were the orders passed
by the trial Court in exercise of its powers conferred under the proviso to
Rule 3 of Order XXXIII of the Code of Civil Procedure (for short 'CPC').
Learned senior counsel submitted that, at best, the remedy available to the
respondents was to file an appeal under Section 96 read with Order XLIII
Rule 1A(2) and Order XLI CPC before the appellate Court. Learned senior
counsel submitted that the pursis was preferred under Order XXIII Rule 3
CPC and not under Order XXI Rule 1 CPC. Learned senior counsel submitted
that the order dated 14.8.2008 falls under the second part of Order XXIII
Rule 3 CPC and hence it would be sufficient that plaintiffs or the
plaintiffs' counsel appears before the Court and informs the Court that the
subject matter suit had been settled or satisfied. Learned senior counsel
also submitted that the heirs of the deceased plaintiff no. 4 and plaintiff
nos. 5/1, 5/2 and 5/4 could not have preferred the writ petitions under
Articles 226 and 227 of the Constitution of India, since the same could
have resulted in setting aside of the abetment which was contrary to law in
view of Order XXII CPC. Plaintiff No. 4 had died on 2.6.2006 and Civil
Suit no. 292 of 1993 had, as such, abated qua the deceased plaintiff no. 4.
Since the heirs, who are respondent nos. 1/1/A to 1/1/D, did not take any
steps to implead themselves as heirs either in Civil Suit No. 292 of 1993
or in Special Civil Suit No. 681 of 1992, on expiry of the period of
limitation under Articles 120 and 121 of the Limitation Act, those suits
stood abated qua plaintiff No. 4. The heirs of the deceased plaintiff no.
4 had not taken any steps for setting aside the abetment or to get them
substituted on the death of deceased plaintiff No. 4 in the various suits.
Further, it was also pointed out that plaintiff Nos. 5/1 to 5/4 had never
objected to the pursis dated 7.7.2008 and hence acquiesced to the order
dated 14.8.2008 and are estopped from challenging that order. Learned
senior counsel submitted that all disputes with plaintiff Nos. 3/1 and 3/2
were also settled during the pendency of these appeals and their objections
before the trial Court under Special Civil Application Nos. 10884 and 11925
of 2005 did not survive. Further, learned senior counsel also pointed out
that the power of attorney dated 7.1.1989 executed by respondent Nos. 5/1,
5/2 and 5/3, respondent Nos. 3/1 and 3/2, respondent No. 1 (since deceased)
and respondent No. 2 (since deceased) in favour of respondent No. 4 -
Chandrakant Atmaram Patel, was binding on respondent Nos. 1, 2, 3, 5 and
their descendants, guardians and heirs. Learned senior counsel also
submitted that, pending the Special Civil Application before the High
Court, building plans put up by Mahalaxmi Society for construction upon the
lands in question, were sanctioned by the competent authority and Mahalaxmi
Society had commenced the construction. Learned senior counsel submitted
that large amounts were paid by Mahalaxmi Society to the owners of the
properties and to the respondents and their representatives and they had
acknowledged the receipt of those amounts. The judgment of the High Court
has now unsettled the things which stood settled. Consequently, learned
senior counsel prayed that the appeals be allowed and the judgment of the
High Court be set aside.
19. Shri J.M. Patel, learned counsel appearing on behalf of the
contesting respondents, submitted that the High Court has rightly set aside
the order dated 14.8.2008 and directed the trial Court to take into
consideration the objections raised by the respondent herein and to re-hear
Exh. Nos. 110 and 172. Learned senior counsel submitted that the suit was
withdrawn without consent of plaintiff Nos. 5/1 to 5/4 by Chandrakant
Atmaram Patel. Further, it was pointed out that no documents were
produced before the trial Court pointing out that the above mentioned
plaintiffs had executed any document in favour of Mahalaxmi Society.
Learned senior counsel also pointed out that Bai Saraswati had
fraudulently, unauthorizedly and illegally made an application before the
authority for seeking permission under Section 63 of the Tenancy Act to
transfer the land in question in favour of Mahalaxmi Society. Following
that, two registered sale deeds dated 5.6.1992 and 8.6.1992 were executed
in favour Mahalaxmi Society, which is in clear violation of Section 63 of
the Tenancy Act read with Section 23 of the Contract Act. Learned senior
counsel also pointed out that the plaint in Civil Suit No. 292 of 1993 was
instituted in his individual capacity and not as a power of attorney holder
for rest of the plaintiffs. Learned senior counsel also pointed out that
Chandrakant Atmaram Patel on 15.5.2004 executed one registered document in
favour of Mahalaxmi Society, signed and executed for and on behalf of
Amrutbhai Ashabai Patel (heirs of Legal Representatives are plaintiff Nos.
5/1 to 5/4) and also signed on behalf of Bai Saraswati, who expired on
22.5.1992, before the institution of suit, on relying upon the power of
attorney dated 7.1.1989. Learned senior counsel pointed out that the
document executed in the name of and on behalf of dead persons and also for
the persons who had not authorized them to sign, such a document, according
to the learned senior counsel, could not have been produced before the
Court.
20. Learned senior counsel appearing on behalf of the contesting
respondents also submitted that the impugned order dated 14.8.2008 is not a
decree within the meaning of Section 2(2) CPC and hence, no appeal could
have been filed under Section 96 read with Order XLIII Rule 1(1) and Order
XLI CPC before the trial Court. Learned senior counsel also submitted that
the contents of the power of attorney dated 7.1.1989 do not empower
Chandrakant Atmaram Patel to withdraw the suits, compound the suits for and
on behalf of plaintiff Nos. 4 and 5 and the Court should not have allowed
the application withdrawing the suit. Learned senior counsel submitted
that the High Court has rightly set aside the order dated 14.8.2008 and
remanded the matter to the trial Court for fresh consideration and no
prejudice would be caused to the appellants, if the validity of Exts. 110
and 172 are re-examined. Learned senior counsel also submitted that this
Court, sitting in Article 136 of the Constitution of India, shall not
disturb the above finding of the High Court.
21. Dr. Rajeev Dhawan, learned senior counsel appearing for the
intervener submitted that the purchasers, landowner and/or their legal
heirs viz. Chandrakant Atmaram Patel had entered into an agreement dated
15.06.1992 with the intervener which was registered and hence it has right,
title and interest over the property in question. Further, it was also
pointed out that the intervener has already filed a suit RCS 783/2004 which
is pending consideration before the civil court and hence it has interest
in these proceedings. Learned senior counsel also submitted that the whole
matter should go back to the trial court so as to safeguard the interest of
the intervener.
22. We have already referred to the facts leading to the making of
pursis dated 7.7.2008 and 18.09.2008 by plaintiff No. 1 - Chandrakant
Atmaram Patel for himself and as power of attorney holder for others and
the orders passed thereon on 14.08.2008 and 08.09.2009 allowing the pursis
and compounding the suits Nos. 292/1993 and 681/1992.
23. Bai Saraswati, as already indicated, had executed two sale deeds
dated 27.10.1964 in respect of separate/non-contiguous parcels of land in
favour of respondent nos. 1 to 5. Schedule to that documents refer to the
survey numbers and properties sold. Respondent No. 1 to 5 (purchasers)
formed a partnership firm by name M/s Arbuda Corporation and they executed
an agreement to sell dated 15.9.1975 in favour of Mahalaxmi Society in
respect of the properties above-mentioned. Later, M/s Arbuda Corporation
and Mahalaxmi Society jointly made an application in the year 1976 under
Section 20 of the ULC Act. Similar applications were also filed by
Mahalaxmi Society, Bai Saraswai and respondent No. 4 - Chandrakant Atmaram
Patel. Respondent nos. 5/1, 5/2 and 5/3, respondent nos. 3/1 and 3/2,
respondent No. 1 (since deceased) and respondent No. 2 (since deceased) had
on 07.01.1989 executed a power of attorney before the Public Notarized
Civil Court, Ahmedabad city, in favour of respondent No. 4 - Chandrakant
Atmaram Patel in respect of properties mentioned earlier conferring
authority on him to deal their property for other plaintiffs and the same
would be binding on respondent Nos. 1, 2, 3, 5 and their descendants,
guardians and heirs. Bai Saraswati, after getting permission under the ULC
Act executed two sale deeds dated 5.6.1992 and 8.6.1992 in favour of
Mahalaxmi Society in respect of properties mentioned earlier.
24. We notice that disputes then cropped up between Mahalaxmi Society,
Bai Saraswati and respondent Nos. 1 to 5 (purchasers), which ultimately led
to the filing of Special Civil Suit No. 681 of 1992, the details of which
have already been stated in the earlier part of this judgment, hence not
reiterated. Respondent Nos. 1 to 5 as plaintiffs then filed Civil Suit No.
292 of 1993 against Bai Saraswati and Mahalaxmi Society on 4.5.1993 for a
declaration that sale deeds dated 5.6.1992 and 8.6.1992 are illegal and for
a permanent injunction restraining Mahalaxmi Society from dealing with the
lands. Plaint was signed by respondent No. 4 - Chandrakant Atmaram Patel,
plaintiff No. 2 who are heirs of deceased Baldevprasad (present respondent
Nos. 5/1 and 5/2), plaintiff no. 3 who are heirs of Manilal Patel (present
respondent Nos. 3/1 and 3/2), plaintiff No. 4 Ashabhai Patel (since
deceased) now through respondent Nos. 1/1/A to 1/1/D and plaintiff No. 5
who are heirs of Amrutlal Patel (present respondent Nos. 2/1, 2/2, 2/3 and
7). Contesting respondents, therefore, were duly represented in Civil
Suit No. 292 of 1993.
25. Bai Saraswati on 18.10.2000 executed a sale deed in respect of one
remaining survey No. 216 in favour of Mahalaxmi Society as well. While the
above mentioned suits were pending, efforts were made for settling the
entire disputes between parties, consequently, plaintiff No. 1 -
Chandrakant Atmaram Patel, for himself and as power of attorney holders for
other plaintiffs executed various documents and entered into various
transactions. Plaintiff No. 1 for and on behalf of other plaintiffs
received an amount of Rs.29,72,326/- made by Mahalaxmi Society by various
cheques, evidenced by the Notarized Acknowledgement-cum-Settlement Receipt
dated 1.5.2004. On the same day, a Deed of Confirmation was also
registered, which also refers to the above mentioned payment made by
Mahalaxmi Society to the plaintiffs. In the Declaration-cum-Indemnity of
Title dated 9.11.2004, it has been clearly stated that Mahalaxmi Society is
the full, legal, proper and absolute owner and possessor of the above
mentioned properties. Further, it is also provided in the said declaration
that the plaintiffs had agreed to co-operate in obtaining appropriate
orders from the Court in pending cases, including Special Civil Suit No.
681 of 1992 and Civil Suit No. 292 of 1993, in view of the compromise and
settlement. Though, at that stage, proportionate amount was given to
plaintiff No. 3, he did not encash the same. Above-mentioned are the
documents executed by plaintiff No. 1 for himself and on behalf of other
plaintiffs on the strength of the power of attorney dated 7.1.1989.
26. Plaintiff No. 1 individually also, apart from the above mentioned
documents, executed various other documents as well, which re-enforces and
re-confirms the above mentioned transactions entered into by Chandrakant
Atmaram Patel - as power of attorney holder for four other plaintiffs.
Plaintiff No. 1 executed a Registered Deed of Confirmation on 10.11.2004
which specifically refers to the payment of Rs.29,72,365/- by Mahalaxmi
Society. Deed also indicates that plaintiff no. 1 personally,
unconditionally an irrevocably without any reservation or restriction
whatsoever accepted, confirmed, acknowledged and admitted the Deed of
Confirmation dated 1.5.2004, which was executed by plaintiff no. 1 for
himself on behalf of other plaintiffs on the strength of the power of
attorney dated 7.1.1989. Registered Articles of Agreement executed on the
same day also refers to further payment of Rs.66,05,527/- being made to
plaintiff No. 1. The Declaration-cum-Indemnity of Title executed on the
same day also recognises that Mahalaxmi Society is in full, legal, proper
and absolute owner and possessor of the above mentioned lands.
27. Plaintiff No. 2, heirs of Baldevprasad Jamunadas, individually also
executed various documents, apart from the documents dated 1.5.2004 and
9.11.2004 executed by plaintiff No. 1 on the strength of the power of
attorney, representing plaintiff No. 2 as well. Plaintiff no. 2 executed,
on 11.11.2004, a Registered Deed of Confirmation acknowledging the payment
of Rs.29,72,365/- of the Mahalaxmi Society and proportionate payment of
Rs.5,94,473/-. Plaintiff No. 2 in the said deed of confirmation,
personally, unconditionally and irrevocably without any reservation or
restriction whatsoever accepted, confirmed, acknowledged and admitted the
deed of confirmation dated 1.5.2004 executed by plaintiff no. 1 on his
behalf and on behalf of other plaintiffs. Registered Articles of Agreement
dated 11.11.2004 also recognises the further payment of Rs.66,05,527/-.
Declaration-cum-Indemnity of Title made on the same day also indicates that
Mahalaxmi Society is the full, legal, proper and absolute owner and
possessor of the above mentioned lands.
28. Plaintiff Nos. 5/1, 5/2, 5/3 and 5/4 - heirs of Amrutlal Patel had
also individually executed various documents. Registered Deed of
Confirmation dated 10.11.2004 refers to the payment of Rs.29,72,365/- by
the Mahalaxmi Society and the proportionate payment of Rs.5,94,473/-.
Plaintiff Nos. 5/1, 5/2, 5/3 and 5/4, in the said deed of confirmation has
personally, unconditionally an irrevocable without any reservation or
restriction whatsoever accepted, confirmed, acknowledged and admitted the
deed of confirmation dated 1.5.2004 executed by plaintiff No. 1 on the
strength of the power of attorney dated 7.1.1989. Registered Articles of
Agreement dated 10.11.2004 also refers to further payment of Rs,66,05,527/-
being made to plaintiff Nos. 5/1, 5/2, 5/3 and 5/4. Declaration-cum-
Indemnity of Title of the same date would also indicate that Mahalaxmi
Society is the full, legal, proper and absolute owner and possessor of the
above mentioned lands.
29. Plaintiff No. 4 had also individually, in addition to the documents
dated 1.5.2004 and 19.11.2004 executed by plaintiff No. 1, executed a
Registered Deed of Confirmation dated 5.1.2005 acknowledging the payment of
Rs.29,72,365/-. In that deed also, plaintiff No. 4 has personally,
unconditionally and irrevocably without any reservation or restriction
whatsoever accepted, confirmed, acknowledged and admitted the deed of
confirmation dated 1.5.2004 executed by plaintiff No. 1. Plaintiff no. 4
had also, vide Registered Articles of Agreement, acknowledged the receipt
of the additional payment of Rs.30,05,527/- on the same day. Declaration-
cum-Indemnity of Title dated 5.1.2005 also acknowledges that Mahalaxmi
Society is the full, legal, proper and absolute owner and possessor of the
above mentioned lands.
30. Above facts would clearly indicate that plaintiff No. 1 on 5.1.2005
had executed documents as the power of attorney holder and also on his
individually capacity, plaintiff Nos. 2/1, 2/2, plaintiff No. 4 and
plaintiff Nos. 5/1, 5/2 and 5/4 had also executed documents and settlement
acknowledging the receipt of payments made by Mahalaxmi Society and also
acknowledging that Mahalaxmi Society is the full, legal, proper and
absolute owner and possessor of the above mentioned properties. Further,
on 9.11.2005, plaintiff Nos. 1, 2/1, 2/2, 4 and 5/1 to 5/4, through their
advocate, published a notice in the local newspaper confirming the above
mentioned facts and also the execution of the documents, thereby
acknowledging that Mahalaxmi Society is the true, full, legal, proper and
absolute owner and possessor of the above mentioned properties.
31. Plaintiff Nos. 3/1, 3/2 and plaintiff no. 4, however, had issued a
public notice dated 05.12.2004 in the local newspapers, cancelling the
power of attorney dated 7.1.1989 executed in favour of plaintiff No. 1 -
Chandrakant Atmaram Patel. Plaintiff no. 4, after having executed the
aforesaid documents in his individual capacity and after receipt of all the
payments as per the aforesaid documents from the Mahalaxmi Society expired
on 2.6.2006. During his lifetime, he had not disputed any of the above
mentioned documents or their contents. The legal heirs of plaintiff No.
4, i.e. plaintiff Nos. 1/1/A to 1/1/D had also not raised any dispute. On
the death of plaintiff No. 4, they also did not take any steps to get them
impleaded as the heirs of plaintiff No. 4 in Special Civil Suit no. 681 of
1992 or in Civil Suit No. 292 of 1993, consequently, on the expiry of the
period of limitation, the suits stood abated, qua plaintiff No. 4.
32. We have found that pursuant to the execution of various documents,
referred to hereinbefore, by plaintiff No. 1 - Chandrakant Atmaram Patel,
for himself and on behalf of the other plaintiffs, as well as plaintiff no.
1 individually, plaintiff No. 2, plaintiff Nos. 5/1, 5/2, 5/3 and 5/4,
plaintiff No. 4 individually, and after having received the amounts
mentioned therein from the appellant - Mahalaxmi Society, decided to record
the compromise in both suits, since all the disputes between them were
settled and they had acknowledged that Mahalaxmi Society is the full,
legal, proper and absolute owner and possessor of the lands in question.
Consequently, plaintiff no. 1, on his behalf and on behalf of the other
plaintiffs, except plaintiff Nos. 3/1 and 3/2, prepared a pursis dated
7.7.2008, referring to the sale deeds dated 08.06.1992 and 18.10.2000
executed in favour of the Mahalaxmi Society in respect of all the
properties in question stating that the plaintiffs have unconditionally
given up all the claims raised in the suit and have settled the issues with
the Mahalaxmi Society. The same was then presented before the trial Court.
Plaintiff Nos. 3/1 and 3/2 and defendant No. 3 - Jankalyan Society,
however endorsed their objection to the pursis on 31.07.2008. Plaintiff
No. 1 filed an affidavit on 13.8.2008 stating that the pursis was given in
his individual capacity and as the power of attorney holder of plaintiff
Nos. 2, 4 and 5. The trial Court, after hearing plaintiff nos. 3/1, 3/2
and defendant no. 3 (intervener), came to the conclusion that plaintiff
Nos. 3/1 and 3/2 had cancelled the power of attorney only on 3.12.2004,
whereas the Deeds of Confirmation were executed prior thereto, and that
defendant No. 3 claim rested only on an agreement to sell, and could not
enjoy any right under the Transfer of Property Act and, thereby, allowed
the pursis and disposed of the suit (Special Civil Suit no. 292 of 1993) on
14.8.2008. Following that, Civil Suit No. 681 of 1992 was also disposed
of on 8.9.2009.
33. We may indicate that the documents referred to earlier, executed by
the plaintiff No. 1 for himself and as a power of attorney holder for
others and the acknowledgment deed; Declaration-cum-indemnity bonds, deeds
of confirmation etc. executed by the plaintiff No.2, heirs of Baldev
Prasad, plaintiff Nos. 5/1, 5/2, 5/3 and 5/4, plaintiff No. 4 etc. would
clearly show that they had received large amounts from the Mahalaxmi
Society and had acknowledged that the Mahalaxmi Society was the full, legal
, proper and absolute owner and the possession of the property covered by
the sale deeds dated 05.06.1992 and 08.06.1992. Plaintiff Nos. 3/1 and
3/2, though later, challenged the judgment and order dated 14.8.2008, after
more than one year, while pending these appeals, they also settled the
matter with Mahalaxmi Society and accepted all the arguments raised by
Mahalaxmi Society in this appeals.
34. Defendant No. 3 - Jankalyan Co-operative Group Housing Society
(present intervener) had never independently challenged the order dated
14.8.208 of the trial Court, consequently the order is binding on defendant
No. 3.
35. We are now left with the objections raised by the heirs of the
deceased plaintiff No. 4 and plaintiff Nos. 5/1 to 5/4. The heirs of
deceased plaintiff No. 4 and plaintiff Nos. 5/1, 5/2 and 5/4 challenged the
judgment and order dated 14.8.2008 only on 1.3.2010, more than one year and
six months later, by filing Special Civil Application no. 7087 of 2010.
The documents referred to earlier clearly indicate that they had received
large amounts from Mahalaxmi Society and the heirs of the deceased
plaintiff no. 4 did not take any steps to get them recorded in the Civil
Suit after the death of the plaintiff No. 4, so far as this case is
concerned, the suit had abated. The heirs of plaintiff No. 4 and plaintiff
Nos. 5/1, 5/2 and 5/4 also challenged the judgment and order dated 8.9.2009
in Civil Suit No. 681 of 1992 only on 1.3.2011 by filing Special Civil
Application No. 7088 of 2010. Plaintiff No. 4, we have already indicated,
was duly represented by plaintiff No. 1 - Chandrakant Atmaram Patel while
executing the various registered documents and issuing Acknowledgement-cum-
Settlement Receipts by which large amounts were received by plaintiff No.
1, representing plaintiff no. 4. Over and above, plaintiff No. 4 himself
had executed various registered deed of confirmation dated 5.1.2005
acknowledging the receipt of Rs.29,32,365/- and also Rs.30,05,527/-. We
are of the view that the legal heirs of plaintiff no. 4 now cannot come
forward and question the various documents executed by plaintiff No. 4,
especially when they had not taken any steps to get them impleaded in both
the civil suits. Impugned orders passed on 14.8.2008 and 8.9.2009,
therefore, would bind them. Plaintiff Nos. 5/1 to 5/4 had also not
objected to the execution of various deeds and documents ratified all the
actions taken by plaintiff No.1, as power of attorney holder, since they
had not objected to the pursis dated 07.07.2008, and hence acquiesced to
the order dated 14.08.2008.
36. We may now examine whether the impugned order would fall under
Rule 3 of Order XXIII or Rule 1 of Order XXIII of the CPC, the said
provisions are given below for easy reference:
ORDER XXIII. WITHDRAWAL AND ADJUSTMENT OF SUITS
1. Withdrawal of suit or abandonment of part of claim
(1) At any time after the institution of a suit, the plaintiff may
as against all or any of the defendants abandon his suit or abandon
a part of his claim:
Provided that where the plaintiff is a minor or other person to
whom the provisions contained in rules 1 to 14 of Order XXXII
extend, neither the suit nor any part of the claim shall be
abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1)
shall be accompanied by an affidavit of the next friend and also,
if the minor or such other person is represented by a pleader, by a
certificate of the pleader to the effect that the abandonment
proposed is, in his opinion, for the benefit of the minor or such
other person.
(3) Where the Court is satisfied,-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject-matter of a suit or part of
a claim, it may, on such terms as it thinks fit, grant the
plaintiff permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of the claim. (4) Where
the plaintiff-
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission
referred to in sub-rule (3),
he shall be liable for such costs as the Court may award and shall
be preclude from instituting any fresh suit in respect of such
subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to
permit one of several plaintiffs to abandon a suit or part of a
claim under sub-rule (1), or to withdraw, under sub-rule (3), any
suit or part of a claim, without the consent of the other
plaintiffs.
"ORDER XXIII - WITHDRAWAL AND ADJUSTMENT OF SUITS-
(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 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."
Rule 1 of Order XXIII speaks of withdrawal of suit or abandonment of part
of claim. Rule 1 of Order XXIII covers two types of cases (i) Where the
plaintiff withdraws a suit or part of a claim with the permission of the
Court to bring in fresh suit on the same subject matter and (ii) Where the
plaintiff withdraws a suit without the permission of the Court.
Rule 3 of Order XXIII, on the other hand, speaks of compromise of suit.
Rule 3 of Order XXIII refers to distinct classes of compromise in suits.
The first part refers to lawful agreement or compromise arrived at by the
parties out of court, which is under 1976 amendment of the CPC required to
be in writing and signed by the parties. The second part of Rule deals
with the cases where the defendant satisfies the plaintiff in respect of
whole or a part of the suit claim which is different from first part of
Rule 3. The expression 'agreement' or 'compromise' refer to first part and
not the second part of Rule 3. The second part gives emphasis to the
expression 'satisfaction'.
37. In Pushpa Devi V. Rajinder Singh, (2006) 5 SCC 566, this court has
recognised that the distinction deals with the distinction between the
first part and the second part.
"What is the difference between the first part and second part of Rule
3?
The first part refers to situations where an agreement or
compromise is entered into in writing and signed by the parties.
The
said agreement or compromise is placed before the court. When the
court is satisfied that the suit has been adjusted either wholly or in
part by such agreement, or compromise in writing and signed by the
parties and that it is lawful, a decree follows in terms of what is
agreed between the parties.
The agreement/compromise spells out the
agreed terms by which the claim is admitted or adjusted by mutual
concessions or promises, so that the parties thereto can be held to
their promise(s) in future and performance can be enforced by the
execution of the decree to be passed in terms of it.
On the other
hand, the second part refers to cases where the defendant has
satisfied the plaintiff about the claim.
This may be by satisfying
the plaintiff that his claim cannot be or need not be met or
performed.
It can also be by discharging or performing the required
obligation.
Where the defendant so 'satisfied' the plaintiff in
respect of the subject-matter of the suit, nothing further remains to
be done or enforced and there is no question of any 'enforcement' or
'execution' of the decree to be passed in terms of it."
38-39. Further, it is relevant to note the word 'satisfaction' has been
used in contradistinction to the word 'adjustment' by agreement or
compromise by the parties.
The requirement of 'in writing and signed by
the parties' does not apply to the second part where the defendant
satisfies the plaintiff in respect of whole or part of the subject-matter
of the suit.
40. The proviso to Rule 3 as inserted by the Amendment Act 1976 enjoins
the court to decide the question where one party alleges that the matter is
adjusted by an agreement or compromise but the other party denies the
allegation. The court is, therefore, called upon to decide the lis one way
or the other. The proviso expressly and specifically states that the court
shall not grant such adjournment for deciding the question unless it thinks
fit to grant such adjournment by recording reasons.
41. So far as the present case is concerned, pursis falls under Order
XXIII, Rule 3 since the defendant has satisfied the plaintiffs in respect
of whole of the subject-matter of the suit. Since objections were raised
by plaintiff No.3 and defendant No. 3, those objections had to be dealt
with by the court in accordance with Order XXIII, Rule 3. The proviso to
Order XXIII, Rule 3 cast an obligation on the court to decide that question
at the earliest, without giving undue adjournments. Objections raised by
plaintiff No. 3 and defendant No.3 were examined by the court and rejected,
in our view, rightly. Cogent reasons have been stated by the court while
rejecting their objections and accepting the pursis.
42. We have also found that the heirs of plaintiff No. 4 did not took
steps to record themselves in Civil Suit No. 292/1993 till the same was
disposed of and hence, as per the provisions of Articles 120 and 121 of the
Limitation Act, suit stood abated qua plaintiff No. 4. No steps had been
taken to set aside the abatement as well. We have also on facts found that
the plaintiff No. 4 during his life time executed various documents
acknowledging the amounts paid by the Mahalaxmi Society. Plaintiff No. 3,
though objected to pursis, later plaintiff Nos. 3/1 and 3/2 have settled
disputes and adopted the contention of the Mahalaxmi Society.
43. We are also not much impressed by the argument of the learned
senior counsel appearing for the respondent that the trial court has
committed an error in not consolidating the various suits including Civil
Suits No. 292/1993 and 681/1992 to be tried together as ordered by the
District Court in its order dated 29.08.2006 in Civil Misc. Application No.
16/2005.
Section 24 of the CPC only provides for transfer of any suit from
one court to another.
The court has not passed an order of consolidating
all the suits.
There is no specific provision in the CPC for consolidation
of suits. Such a power has to be exercised only under Section 151 of the
CPC. The purpose of consolidation of suits is to save costs, time and
effort and to make the conduct of several actions more convenient by
treating them as one action. Consolidation of suits is ordered for meeting
the ends of justice as it saves the parties from multiplicity of
proceedings, delay and expenses and the parties are relieved of the need of
adducing the same or similar documentary and oral evidence twice over in
the two suits at two different trials. Reference may be made to the
judgment of this Court in Prem Lala Nahata and Anr. v. Chandi Prasad
Sikaria (2007) 2 SCC 551.
44. The transfer of the suits from one court to another to be tried
together will not take away the right of the parties to invoke Order XXIII
Rule 3 and there is also no prohibition under Order XXIII Rule 3 or Section
24 of the CPC to record a compromise in one suit. Suits always retain
their independent identity and even after an order of consolidation, the
court is not powerless to dispose of any suit independently once the
ingredients of Order XXIII, Rule 3 has been satisfied.
45. We are, therefore, of the view that so far as the instant case is
concerned, there is no illegality in the orders passed by the trial court
disposing of the suit under Order XXIII, Rule 3 of the CPC accepting the
pursis dated 07.07.2008 and 18.09.2008. The High Court, in our view, was
not right in upsetting the orders dated 14.08.2008 and 08.09.2009 in
Special Civil Suit Nos. 292/1993 and 681/1992. Consequently, all these
appeals are allowed and the common judgment of the High Court is,
accordingly, set aside. However, there will be no order as to costs.
........................J.
(K.S. Radhakrishnan)
........................J.
(Dipak Misra)
New Delhi,
March 1, 2013
ITEM NO.1A(For Judgment) COURT NO.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
C.A. Nos...........................................@
Petition(s) for Special Leave to Appeal (Civil) No(s).126-129/2012
(From the judgement and order dated 19/12/2011 in SCA No.10884/2009,SCA
No.11925/2009,SCA No.7087/2010,SCA No.7088/2010 of The HIGH COURT OF
GUJARAT AT AHMEDABAD)
MAHALAXMI COOP.HOUS.SOC.LTD.& ETC. Appellant(s)
VERSUS
ASHABHAI ATMARAM PATEL(D) TR.LRs.& ORS. Respondent(s)
Date: 01/03/2013 These appeals were called on for
pronouncement of judgment.
For Petitioner(s) Mr. E.C. Agrawala,AOR
For Respondent(s) Mr. Siddhartha Jha,Adv.
Mr. V.K. Monga,AOR
Mrs. V.D. Khanna,AOR
Mr. Hari Shankar K.,AOR
Mr. Dharmendra Kumar Sinha,AOR
Mr. J.M. Patel,Adv.
Mr. Jayraj Chauhan,Adv.
Hon'ble Mr. Justice K.S. Radhakrishnan pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr.
Justice Dipak Misra.
Leave granted.
Application for intervention is allowed.
Application for bringing heirs and legal representatives on
record of deceased Chandrakant Atmaram Patel is allowed.
The appeals are allowed in terms of the signed reportable
judgment.
|(NARENDRA PRASAD) | |(RENUKA SADANA) |
|COURT MASTER | |COURT MASTER |
(Signed reportable judgment is placed on the file)
