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SHRIPATRAO DAJISO GHATAGE AND ANOTHER V/S USMAN ABDUL SHAIKH & OTHERS , decided on Monday, June 23, 1997.
[ In the High Court of Bombay, Civil Revision Application No.183 of 1997 . ] 23/06/1997
Judge(s) : V.R. DATAR
Advocate(s) : S.M. Paranjape. R1 R6 Vineet B. Naik.
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    Subject Index:Code of Civil Procedure 1908 Sec. 115 O. 23 R. 3---Specific Relief Act 1963 Sec. 37     V.R. DATAR J.In this Revision Application under section 115 CPC orders passed by learned Civil Judge Junior Division Kagal below applications Exhibits-137 139 and 144 in Regular Civil Suit No. 3 of 1983 are impugned and rule has been issued by directing expeditious disposal of this application. Accordingly the Civil Revision Application is taken up for hearing. In order to understand the points in controversy it would be necessary to reproduce certain facts.The dispute relates to vacant piece of land with structure constructed of stones and earth (mud) over it from City Survey No. 44 Village Panchayat No. 191 Property No. 93 of village Pimpalgaon Khurd Taluka Kagal District Kolhapur. Regular Civil Suit No. 3 of 1983 was initially instituted by petitioner No. 1 Shripatrao Dajiso Ghatage through his so called power of attorney holder Shri Ganpatrao Gopalrao Jadhav against the respondents herein and to this suit later on Shri Basaveshwar Vividh Karyakari Sahakari (Vikas) Seva Society of Pimpalgaon came to be added as plaintiff No. 2 as the property in dispute had been transferred in its favour by plaintiff No. 1. Respondents No. 2 to 5 are the sons of respondent No. 1 while respondent No. 6 is the wife of respondent No. 1. Respondents Nos. 7 to 9 are strangers. Petitioner No. 1 made out a case in the plaint that this property is his ancestral property and is situated at Northern West side. He has been in possession thereof since long time and the respondents have no concern with the same. However respondents are trying to obstruct and disturb his peaceful possession over this property and apprehending dispossession the suit was filed claiming perpetual injunction restraining the respondents from interfering with his possession. In that suit respondents Nos. 1 to 6 appeared and filed their written statement denying the claim of the petitioners-plaintiffs. They contended that the suit property is part and parcel of their property of Village Panchayat No. 70-B and they have been in possession thereof. There is a cattle shed of respondents No. 1 to 6 over the said property and therein fodder is stored. The respondents therefore denied the claim for perpetual injunction.2. It appears that on 16-8-1996 the power of attorney holder of plaintiff No. 1 was examined as witness and in regard to deed of power of attorney certain questions were put. That is how application Exhibit-134 came to be filed on behalf of the petitioners stating therein that the witness of the plaintiffs was under cross-examination and certain questions about the deed of power of attorney are put to him. As such the petitioners may be granted leave to put questions regarding this power of attorney and the same is to be exhibited. No hardship would thereby be caused to the respondents. This application was given on 16th August 1996. On 18th August 1996 the learned Civil Judge Kagal called upon the other side namely the respondents to file their say to this application.3. Thereafter it appears that on 31st August 1996 one pursis Ex-137 came to be filed on behalf of the petitioners by applying to take suit on board and in pursis it was stated that defendant No. 1 (respondent No. 1) is Mohammedan and as per the Mohammedan law his heirs get right only after his death. Defendants No. 2 to 6 are the sons and wife and defendants No. 7 to 9 are strangers unconcerned with the property. As such the names of defendants No. 2 to 9 be deleted from the suit.4. On that day the learned Civil Judge directed other side to file say but did not pass any order. On the same day viz. 31-8-1996 a joint pursis on behalf of the petitioners-plaintiffs and respondent No. 1 (defendant No. 1) came to be filed in the said suit and this pursis recited that there was a compromise between the said parties where under defendant No. 1 accepts the suit property as of the absolute ownership of the plaintiffs and he is not concerned with the same; that in respect of this property there has been a decision by the High Court and the defendant No. 1 agrees and accepts that he has been restrained from obstructing the plaintiffs in respect of the said property. As such he has no concern with the property in dispute. Defendant No. 1 is neither the owner nor is in possession of the property and the plaintiffs are the owners and possessors of the property. On this pursis the learned Civil Judge passed an order to the following effect :The contents are read over before plaintiff and defendant No. 1 and before advocates. They admit the same; hence it is read and recorded.No consequential orders were passed upon the plaint in pursuance of this pursis.5. However on 7th September 1996 an application Exhibit-139 came to be filed on behalf of defendants No. 2 to 6 to the effect that the compromise pursis filed between the plaintiffs and defendant No. 1 should not be accepted for the following reasons :---(i) The compromise is not made in proper lawful and clean atmosphere;(ii) Defendant No. 1 is an aged person and his mental condition is not sound. He has no capacity to think rationally and he does not understand his interest. Had he not been so he would not have given such admissions against the interests of defendants No. 2 to 6. The compromise is against the interests of defendants No. 2 to 6. The property in dispute is in actual possession of defendants No. 2 to 6.(iii) Defendant No. 1 is imbecile and wanders at large. The plaintiff-institution had taken disadvantage of this position and filed the compromise pursis.(iv) The manner in which the compromise pursis has been presented to the Court would disclose that the same was not fair.6. The suit is pending for last 13 years and the way in which it is conducted would manifest that the compromise is unfair.7. As such defendants Nos. 2 to 6 prayed that the said compromise should not be accepted.8. On that day the learned Judge called on the other side viz. the respondents to file their say.9. Again further on 30th September 1996 application Ex- 144 came to be filed on behalf of respondent No. 1 (defendant No. 1 himself) stating therein that he was 85 years old and short of hearing and short of sight. Sometimes there is lack of memory on his part due to old age and he does not understand what he is doing. He has not compromised with the plaintiffs. Taking disadvantage of the above facts the plaintiffs obtained his signature on blank paper and wrote contents about compromise on that paper. The same is not admitted by him.10. The Court asked him if he agreed to the contents but that was not heard by defendant No. 1 properly. As he did not understand the same he felt that the suit was adjourned to next date and nodded in the affirmative in that behalf. Thereafter defendant No. 1 prayed that as he has not compromised no decree should be passed on the basis of the same and the suit should be decided on merits. Upon this application also the learned Judge called upon the other side to file say by his order dated 8th October 1996.11. It appears that all these three applications were heard by the learned Civil Judge on 22nd November 1996 and he disposed them of by passing separate orders. In regard to leave sought by the petitioners-plaintiffs to put certain questions in the examination in chief in regard to power of attorney the learned Judge held that since plaintiff and defendant No. 1 have filed a compromise pursis that application loses its force and the same was therefore ordered to be filed with no order as to costs.12. In regard to Exhibit-137 ( the application of the plaintiff) the learned Judge in one breath observed that the plaintiff has every right to delete the names of defendants who according to him do not obstruct his right. However at the end this application is also ordered to be filed by observing that the plaintiff has every right to file a fresh application at later stage if the plaintiff so desires.13. In regard to Exhibit-139 (the application of defendants No. 2 to 6) this is what the learned Judge ordered. It is true that the compromise pursis is read and recorded after it was read over before the parties in the open Court and when the parties admitted the contents. But a decree is not drawn immediately when the other defendants have come forward to challenge the compromise pursis. Therefore whatever admitted by the plaintiffs and defendant No. 1 in the compromise pursis has no morale effect (sic) in the subsequent changing circumstances. After all we have to see merit of the suit and not merit of the individual. The defendant No. 1 now stands for fighting the suit. We have to see his defence also. Hence it can be said that real dispute between the parties shall be ended only after deciding the case on merit.14. Hence the application is allowed.15.The pursis of compromise filed at Exh. 138 is filed and recalled.No orders as to costs.16. So also in regard to Exhibit-144 (the application of defendant No. 1) initially in the earlier part of his judgment the learned Judge has stated that the said compromise pursis was read over by him in open Court and in loud voice before plaintiff and defendant No. 1 and their advocates and they agreed to the contents thereof and thereafter the pursis was read and recorded. It appears that the learned Judge has virtually disbelieved the case of defendant No. 1 that he did not hear properly what the Court asked him in regard to this compromise. However in the later part of the judgment the learned Judge after stating the legal position in regard to an enquiry about the compromise pursis and citing the decision of the Supreme Court in that behalf held---In the present matter it has appeared that the conduct of the plaintiffs seems to be doubtful. He filed the application for taking suit on board. Furthermore the defendant No. 1 himself challenged the compromise pursis Exh. 138. And therefore the alleged compromise itself was void illegal and against the requirement of O. 23 R. 3. The compromise pursis does not disclose that it was a lawful agreement for compromise. Because the defendant Nos. 2 to 8 also claim their interest over the suit property and in the circumstances there is reason to believe that the defendants acted biasly and fraudulently and hence as per direction of Their Lordships the order passed below Exh. 138 can be recalled. Hence following order is passed :---Order-- The application is allowed subject to costs of Rs. 200/- payable on or before next date.The plaintiffs should take steps to lead the evidence after the costs is received on next date.17. That is how the present revision application is filed to challenge all these orders.18. I have heard Mr. Paranjape for the petitioners and Mr. Naik for respondents No. 1 to 6 while respondents No. 7 to 9 are served.19. So far as orders below Exhibits 134 and 137 passed by the learned Civil Judge Kagal are concerned those are clearly erroneous on the face of the record. The application Ex-134 was in regard to permission sought by the petitioners to put certain questions in the examination in chief regarding the deed of power of attorney executed by petitioner No. 1 in favour of Ganpatrao Gopalrao Jadhav. That application has been disposed of because there had been a compromise between the parties and this order is passed on 22nd November 1996. Curiously the learned Judge on the same day refused to pass decree in terms of the compromise and directed the suit to be heard on merits. If that was so it was erroneous on the part of the trial Court to dismiss that application on the ground that there was a compromise. Had it been rejected on some other ground it would have been a different matter. Obviously this order cannot be allowed to be sustained.20. Equally unsustainable is the order passed by the learned Judge below Exhibit-137. By this pursis the plaintiffs sought to delete the names of respondents No. 2 to 9. It is to be noted that the plaintiff is the dominus litis meaning thereby that it is his sweet free will against whom he should proceed. As such neither it was open to the respondents to challenge that pursis nor the learned Judge should have forced upon the petitioners to proceed with their suit against defendants No. 2 to 9. In fact the learned Judge appears to be aware of this position as in his judgment he has observed that the plaintiff has every right to delete the names of the defendants who according to him do not obstruct his right. The petitioners-plaintiffs would suffer the consequence of deleting the names of respondents No. 2 to 9 if really they have got any interest and the petitioners-plaintiffs are having any impediment in execution of the decree if at all it is passed. Obviously once the names of respondents No. 2 to 9 (Original defendants No. 2 to 9) are deleted the decree if any that would be passed would not be binding upon them.21. Being quite aware of this position the learned Judge has ultimately passed an erroneous order that the application be filed and observing that the petitioners-plaintiffs have every right to file fresh application if they so desire. Therefore the learned Judge was enjoined upon to pass order deleting the names of defendants No. 2 to 9 on this pursis which reserves no right in favour of the plaintiffs. Accordingly this order will also have to be set aside.22. So far as orders below Exhibits-139 and 144 are concerned those orders are separate yet are based on the same reasons. In fact Exhibit-139 filed by defendants No. 2 to 6 was really not maintainable once the petitioners chose to delete their names. It was not open to them to oppose that prayer and yet pray that the suit should be proceeded against them.23. As regards Exhibit-144 after going through the judgment of the trial Court it could be seen that in the first portion of its judgment the learned Judge had observed that the compromise pursis was read over to plaintiff and defendant No. 1 and their advocates and the same was accepted. At the beginning of the judgment the learned Judge has observed It is not known why the defendant No. 1 says that he did not hear talking (sic) of the Court which (sic) he was asked whether he agreed with the contents of pursis. The learned Judge thereafter made a general observation and the occasion or the cause thereof is not known. He observed Nowadays it becomes habit of litigant to submit irrelevant false submission by referring the Court particularly the lower Court. Anybody can make a lower judicial officer to face unbearable trouble by mere sending a postal card to the superiors with false contents This was not the occasion where the learned Judge should have put forth this type of grievance of representative character and no such postal communication appears to have been sent in this matter. That is how the learned Judge then observed that it is his practice to ascertain parties ability whenever they file a compromise pursis. He then went on to state that he did ascertain such ability by reading over the contents of the pursis before defendant No. 1 and plaintiffs in loud voice and in open Court and repeatedly both the parties were asked whether they agreed with the contents and they admitted. Although this was the position affirmed by the lower Court initially yet in the later part of the judgment the learned Judge appears to have turned round and ultimately observed in the last paragraph In the present matter it has appeared that the conduct of the plaintiffs seems to be doubtful. He filed the application for taking suit on the board. Furthermore the defendant No. 1 himself challenged the compromise pursis Exh. 138. And therefore the alleged compromise itself was void illegal and against the requirement of O. 23 R. 3. The compromise pursis does not disclose that it was a lawful agreement for compromise; because the defendant Nos. 2 to 8 also claim their interest over the suit property and in the circumstances there is reason to believe that the defendants acted biasly and fraudulently and hence as per direction of Their Lordships the order passed below Exh. 138 can be recalled. These observations are quite contrary to what the learned Judge has observed in the preamble. Furthermore it would be seen that such conclusions and observations are made without affording any opportunity to the petitioners-plaintiffs and Mr. Paranjape for the petitioners has rightly made a grievance about such observations when virtually plaintiffs are held to have defrauded the defendants and in particular defendant No. 1. No doubt a compromise pursis can be challenged by a party on the ground upon which agreement bound be challenged under the provisions of Indian Contract Act. In fact the explanation below Order XXIII Rule 3 is to the following effect. An agreement or compromise which is void or voidable under the Indian Contract Act 1872 shall not be deemed to be lawful within the meaning of this rule.24. In (Misrilal Jalamchand v. Sobhachand Jalamchand)1 A.I.R. 1956 Bom. 569 Shah J. has held that the Court has power under R. 3 where an agreement or compromise is denied to decide whether as a fact the alleged agreement or compromise was made and if it is satisfied that it was made to record it. When the Court is required to satisfy itself as to the existence of an agreement and is further required to satisfy itself that there is a lawful agreement adjusting the suit the Court must on an application to record compromise consider especially where a plea of undue influence is raised whether the agreement is not vitiated on any such ground as illegality fraud misrepresentation etc. Therefore the contention that the trial Judge while recording the compromise should not have recorded any finding on the question whether there was or was not any undue pressure or undue influence as set up by a party in his application is not acceptable.25. Similarly in (Pannalal v. Kisanlal)2 A.I.R. (39) 1952 Nagpur 84 it has been held that a party is not shut out or estopped from contesting a compromise merely because he had presented it to the Court for being recorded. He is at liberty to challenge the fact.26. Lastly the trial Court has relied upon the decision of the Supreme Court in the case of (Banwari Lal v. Smt. Chando Devi)3 A.I.R. 1993 S.C. 1139. The Supreme Court has considered the legal position before amendment of Order XXIII and the one after the amendment. In particular explanation reproduced above to Rule 3 of Order XXIII has been considered by the Supreme Court and ultimately it has been held that the trial Court can entertain an application of plaintiff for considering that the compromise was not lawful.27. Mr. Paranjape however tried to distinguish this decision and submitted that all the details regarding the fraud were clearly stated in the petition made before the trial Court in that case. However in the application Ex-144 no details are there and the reasons or the causes given by respondent No. 1 in this application are found to not true by the trial Court . Respondent No. 1 did state in the application Ex-144 that because of his old age of 85 years he is short of hearing and is confused also. Therefore he did not hear the words of the learned Judge of the trial Court regarding the compromise and nodded his neck head under an impression that the suit was adjourned to next date. It is also said in the said application that there is lapse in his memory at times. No doubt the learned Judge has stated that he loudly read over the contents and repeatedly did so and petitioner and defendant No. 1 agreed to the contents. However the learned Judge has considered some of the attending circumstances viz. filing of the application by plaintiffs petitioners to take the suit on board change of the advocate by defendant No. 1 and a compromise by deleting other defendants and that too when the suit was pending for 13 years and was fought tooth and nail. Although these facts may not have been pleaded in the application but were already there on record. However I find that the learned Judge has arrived at such a finding without giving proper opportunity to the plaintiffs- petitioners to lead any evidence in this behalf and had drawn conclusions that in fact the petitioners-plaintiffs have defrauded the defendants. In these circumstances I find that the application Exhibit-144 has not been properly enquired into and an enquiry is absolutely necessary before either accepting or rejecting the same.28. Under the circumstances I feel that order passed by the learned Civil Judge below Exhibit-144 and so also below Exhibit-139 should be set aside and the learned Judge should be directed to consider and decide Exhibit-144 after giving due opportunity to petitioners-plaintiffs and defendant No. 1 in regard to the allegations made in the said application. To that extent rule should be made absolute.29. Accordingly orders passed by the trial Court below Exhibits- 134 137 and 139 are quashed and set aside so also the order passed below Exhibit-144 and the matter is remitted to the Civil Judge Junior Division Kagal to consider application Exhibit-144 afresh by giving opportunity to the parties namely plaintiffs and defendants to lead any evidence if they so desire. It is however made clear that while considering the application afresh the trial Court shall not be weighed by any of the aforesaid observations.30. Rule is made absolute in the aforesaid terms with no order as to costs.Revision partly allowed.