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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.Page 2
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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) andPage 3
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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. Page 4
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5. Bai Saraswati – respondent no. 6 herein – had executed
two Sale Deeds dated 27.10.1964 in respect of separate noncontiguous 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 abovementioned 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 –Page 5
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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 abovementioned 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 CivilPage 6
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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-cumSettlement receipt was also issued on 1.5.2004, which isPage 7
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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 ofPage 8
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Rs.66,05,527/- by the Mahalaxmi Society which was received
by plaintiff No. 1 – Chandrakant Atmaram Patel. Declarationcum-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 ofPage 9
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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. 4Page 10
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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,Page 11
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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 onPage 12
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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 alsoPage 13
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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 itPage 14
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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 arePage 15
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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 stoodPage 16
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settled. Consequently, learned senior counsel prayed that the
appeals be allowed and the judgment of the High Court be set
aside.
19. Shri Mihir Joshi, learned senior 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 ofPage 17
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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 CPCPage 18
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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 hasPage 19
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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, BaiPage 20
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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 andPage 21
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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 thePage 22
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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 – asPage 23
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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 Declarationcum-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 paymentPage 24
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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 byPage 25
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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-cumIndemnity 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.Page 26
26
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 aforesaidPage 27
27
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 ownerPage 28
28
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 SuitPage 29
29
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 independentlyPage 30
30
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, representingPage 31
31
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
Page 32
32
(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.
Page 33
33
(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 subjectmatter 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.”
Page 34
34
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.Page 35
35
“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.”
Page 36
36
38. 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.
39. The requirement ‘in writing and signed by the parties’ does
not apply to that part of Rule 3 where the defendant satisfies
the plaintiff.
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 thePage 37
37
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.Page 38
38
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.Page 39
39
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.Page 40
40
………………………….J.
(K.S. Radhakrishnan)
………………………….J.
(Dipak Misra)
New Delhi,
March 1, 2013
