Dismissed

K S a Javed Shakir Ismail Shakir v. Afsaribegum Sayyed Ejaz Ahmed and Ors.

Bombay HC1 Dec 2014CA/1206/2004

Case brief

AI extract

What is this about?

This court rejected an application for review of an order recording compromise in Letters Patent Appeal No. 25/2001. The applicant, having filed independent suits for specific performance before the compromise, was not bound by it and had locus to contest rights. The objection of fraud was raised in a pending suit, allowing it to be heard independently of the compromise.

What did the court decide?

Civil Application rejected. No costs. Civil Application No. 3329 of 2007 placed for further consideration after four weeks.

K S a Javed Shakir Ismail Shakir Vs… — Civil Procedure and Limitation | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.1206 OF 2004 IN CIVIL APPLICATION NO.9715 OF 2003 IN LETTERS PATENT APPEAL NO.25 OF 2001

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K.S.A. Javed Shakir s/o Ismail Shakir

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Applicant

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Versus

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Afsaribegum w/o Sayyed Ejaz Ahmed and others

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Respondents

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Mr.R.N.Dhorde, Senior Counsel i/by Mr.J.H.Deshmukh, advocate for the applicant.

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Mr.P.R.Katneshwarkar, advocate for Respondents No.7 to 9 in C.A. Mr.R.S.Deshmukh, advocate for original plaintiffs in the suit in which LPA No.25/2001 arose.

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WITH

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CIVIL APPLICATION NO.3329 OF 2007 IN LETTERS PATENT APPEAL NO.25 OF 2001

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Afsari Begum w/o Sayyad Ejaj Ahmed and another

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Applicants

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Versus

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Sayyad Mastan s/o Sayyad Ibrahim and others

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Respondents

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Mr.R.S.Deshmukh, advocate for applicants.

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Mr.P.R.Katneshwarkar, advocate for Respondents No.4 to 7 & 12

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CORAM : B.P.DHARMADHIKARI &

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A.M.BADAR, JJ. DATE : 01st December, 2014

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PER COURT:

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1 Heard Senior Counsel Shri R.N.Dhorde for the applicant, advocate Shri Katneshwarkar for Respondents No.7 to 9

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in Civil Application and advocate Shri R.S.Deshmukh for original plaintiffs in the suit in which L.P.A. No.25/2001 arose.

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2 Advocate Shri Deshmukh has pointed out that original plaintiffs have filed a Civil Application seeking recall of the order dated 14.11.2003 by which a compromise was recorded in the Letters Patent Appeal. Advocate Shri Katneshwarkar has pointed out that he has not received copy of that Civil Application.

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3 Civil Application No.1206 of 2004 is filed by a person who was not party to that litigation. He claims to have an irrevocable power of attorney and also an agreement of sale with original plaintiffs. On the basis of these documents, present applicant has filed Special Civil Suit No.74/2002 (New No.38/2004) before Civil Judge, Senior Division, Parbhani on 05.12.2002 for specific performance of contract against original plaintiffs.

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4 Appellants in L.P.A. No.25/2001 filed Civil Application No.9715/2003 on 09.10.2003 i.e. after filing of above suit by present applicant. C.A. No.9715/2003 was filed for recording of compromise between the parties in L.P.A. It needs to be mentioned that apart from Special Civil Suit No.74/2002, present applicant has also filed another suit, namely 70/2003 for similar relief against a co-owner. Both the suits are pending.

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5 After getting knowledge of the attempted compromise in L.P.A., present applicant filed Civil Application St.No.30359 of 2003 on 15.10.2003 raising objection to the maintainability of

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L.P.A. It was not pressed. After disposal of L.P.A. on 17.03.2003, on 11.11.2003, he filed another Civil Application No.9716/2003, raising objection to the compromise terms in L.P.A. After hearing all concerned on 14.11.2003, this Court allowed Civil Application No.9715/2003 for compromise and rejected Civil Application No.9716/2003. Thereafter unsuccessful applicant in C.A. No.9716 of 2003 has filed this Civil Application for review.

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6 Initial contention that L.P.A., as filed, was not maintainable, has not been pressed because of the Full Bench judgment of this Court in the case of Rahul Sharad Awasthi Vs. Sadashiv Sahakari Grihrachana Sanstha , reported in 2004 (3) MhLJ 706.

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7 However, learned Senior Counsel invites attention to the provisions of Order XXIII Rule 3A of the Civil Procedure Code to urge that when a compromise is to be challenged, it needs to be challenged in very same proceedings and a separate suit, as such, is not maintainable. He invites attention to order dated 23.04.2014 passed by the trial Court below Exhibit-104 in Special Civil Suit No.38/2004 rejecting prayer of the applicant to pass a decree on admission under Order XII Rule 6 of the Civil Procedure Code. He contends that there the learned trial Court has found that the issue has attained finality because of compromise recorded in L.P.A.

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8 Advocate Shri Deshmukh, appearing for plaintiffs in the suit, through which the L.P.A. arose i.e. Special Civil Suit No.37 of 1992, before Civil Judge, Senior Division, Parbhani,

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submits that plaintiffs were also misled and, therefore, they have filed application for recalling the order rejecting compromise. He is, therefore, supporting, to that extent, arguments of Senior Counsel Shri Dhorde.

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9 Advocate Shri Katneshwarkar has strongly opposed the application for review, as filed. He submits that objections, on similar lines, raised by present applicant, were looked into by this Court when it rejected the application earlier on 14.11.2003.

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10 He states that Suit No.37/92 was withdrawn by plaintiffs as a part of that order and as such, there is no question of original plaintiffs now changing sides and joining hands with present applicant. He further seeks leave to file appropriate reply to the application moved by original plaintiffs pointing out that its copy is still not served upon him. Advocate Shri Deshmukh is disputing service of copy.

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11 According to advocate Shri Katneshwarkar as the present applicant had already filed a suit and sought relief against original plaintiffs, it cannot be said that he had stepped into shoes of plaintiffs.

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12 Learned Senior Counsel has relied upon judgments of Hon'ble Apex Court in the case of Banwari Lal Vs. Chando Devi , reported in (1993) 1 SCC 581; and a later judgment in the case of HORIL Vs. Keshav & another , reported in (2012) 5 SCC 525, where earlier judgment has been followed. Perusal of earlier judgment shows that the question, whether a compromise has

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been obtained by fraud or not needs to be raised in disposed of proceedings before the same Court, which passed that compromise decree. The provisions of Order XXIII Rule 3A obviously envisage a dispute between parties to the suit. The said provision cannot be used to the detriment of a stranger who complains of fraud and is not a party to that suit. The fraud, if proved, vitiates everything and renders the proceedings void. It is settled law that defence based on such fraud can even be raised even in collateral proceedings.

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13 The dates noted by us supra clearly show that present applicant filed two suits against his principals seeking specific performance and thus it cannot be said that after that date, he was occupying the same position qua plaintiffs and that he stepped into shoes after that date. Even before this Court, when application was moved opposing the compromise, it is obvious that present applicants were pressing their distinct and independent rights. This Court has considered the relevant arguments in paragraph 4 of the order of which review is sought and noted that applicants were not parties to the suit and, therefore, not concerned with it. It is expressly observed that applicants, who moved Civil Application No.9716 of 2003, had filed Special Civil Suits No.74/2002 and 70/2003 and they are not bound by compromise terms and will independently contest their rights in the pending suits.

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14 Thus, this Court has correctly appreciated the position. It has been clarified by this Court that the compromise recorded does not prejudice in any way the applicants who were

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plaintiffs in Suit No.70/2002 and 70/2003.

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15 Even after hearing respective learned Counsel, we do not find any material change warranting review of that finding.

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16 Consequentially, Civil Application is rejected. No costs.

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17 Civil Application No.3329 of 2007 be placed for further consideration after four weeks.

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A.M.BADAR

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JUDGE

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B.P.DHARMADHIKARI

JUDGE

adb/ca120604

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.5932 OF 2012 IN CIVIL APPLICATION NO.1206 OF 2004 IN LETTERS PATENT APPEAL NO.25 OF 2001

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K.S.A. Javed Shakir s/o Sk.

Ismail Shakir

Applicant

Versus

Shree Datta Developers, Vasmat and others

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Respondents