Prabhurambhai Bhavabhai Brahman Vs Hemjibhai Bhavabhai Brahman

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C/CRA/44/2020 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CIVIL REVISION APPLICATION NO. 44 of 2020

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========================================================== PRABHURAMBHAI BHAVABHAI BRAHMAN

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Versus

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HEMJIBHAI BHAVABHAI BRAHMAN

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========================================================== Appearance:

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MS NILAM N CHAUHAN(6635) for the Applicant(s) No. 1 for the Opponent(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

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Date : 05/02/2020

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ORAL ORDER

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1. Aggrieved by order dated 30.11.2019 below
Exh.6 in Regular Civil Suit No.113 of 2019 rendered by
the learned Principal Civil Judge, Vav, the petitioner
is before this Court invoking jurisdiction under
Section 115 of the Civil Procedure Code (for short 'the
CPC').

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2. The suit was lodged by the petitioner with
the grievance against the opponent who is his brother
that distribution of the disputed property made by his
father amongst two brothers, was being defied by his
brother-opponent herein with an intention to sell away
his portion of the land. Upon the summons being issued
to opponent, he did not file written statement and
after some time a compromise Pursis was tendered which
virtually accepted the case of the plaintiff. The trial
Court while relying upon Section 34 of the Specific
Relief Act, where-under the suit was filed for
declaration as also Order 23 Rule 3 of the CPC recorded

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Page 1 of 8

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C/CRA/44/2020 ORDER

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following findings :

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“Looking to the facts and circumstances of
the present matter it transpires that there
is not any denial or disagreement or strong
objection between the parties, from the very
beginning of the matter (before the
institution of the suit), relating to the
title to such character or any such right to
property. And so it clearly transpires that
there has been not any denial or disagreement
between the parties and the present agreement
has been entered conclusively by the parties
before the Hon'ble Court. Also the citation
produced were inconsistent with the present
facts and circumstances of the suit.”

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3. According to the learned counsel for the
petitioner, the Court below was not right in finding
that the petitioner had a mere chance to succeed to
the titles of disputed property. In his submission, he
had a real right to succeed and in fact had succeeded
to the disputed property when the share was distributed
amongst two brothers.

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3.1. It was contended that in absence of
illegality attached to the compromise, it was
obligatory for the Court to record the same and pass
the decree as prayed for.

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4. This Court is unable to accept the

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submissions made by the learned counsel for the
petitioner for the simple reason that for a compromise
to happen there must exist a lis. The averments in the
plaint were not disputed; no written statement was
filed and thus, there existed no lis between the
parties and in fact the compromise/declaration merely

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Page 2 of 8

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C/CRA/44/2020 ORDER

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endorsed the averments made by the plaintiff. Thus in
absence of dispute, nothing could have prevented the
defendant to extend to the plaintiff the rights claimed
in the prayer, without intervention of a decree.
Therefore, in the opinion of this Court, the trial
Court was within its jurisdiction to make the above
quoted observations.

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5. The real purport of the order appears to be
as above; although the Court below after referring to
a judicial pronouncement unnecessarily entered into
merits and observed that an agreement transferring
spes successions is not lawful compromise. The said
observations have not been comprehended as reasons for
rejection of the compromise; but appear to be merely
passing observations, principal ground for rejection
was the absence of the lis between the parties.

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6. The proposition canvassed by the learned
counsel for the petitioner that a dispute,
disagreement or objection by the defendant is not a
relevant inquiry under Order 23 Rule 3 of the CPC
cannot be wholly accepted for the simple reason that
a dispute presupposes a disagreement. The plaint must
identify by material pleadings the area of dispute with
specific averments. The trigger point for exercise of
the jurisdiction by the Court would principally rest
upon such area of dispute inferable from the specific
averments in the plaint, else the plaint would be
liable to be rejected under Order 7 Rule 11(a) of the
CPC for non-discloser of cause of action.

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Page 3 of 8

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C/CRA/44/2020 ORDER

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7. If the plaint fails to highlight the
disagreement on the material facts, in respect of which
the relief is sought, in the opinion of this Court, no
compromise can be recorded thereon under Order 23 Rule
3 of the CPC. Taking any other view would consequent
into opening the floodgates of litigation for
adjudication of the lis which may not exist. The
possibilities of fraud on the Court by seeking the
decree without there being any dispute, for
undisclosed ill intentions cannot be ruled out.
Therefore, in the opinion of this Court, the Court
would always examine the existence of a real dispute
before recording the compromise. In fact the word
'compromise' itself implies the existence of dispute
for, there cannot be a resolution of dispute by
compromise in absence of its existence.

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8. Learned counsel for the petitioner relied
upon (i) Tulsan Vs. Pyare Lal & Ors. [(2006) 10 SCC
782]; (ii) Narshibhai Nanjibhai Padariya and Ors. Vs.
Kanchanben Rajabhai Padariya and Anr. [Special Civil
Application No.10655 of 2013, decided on 30.09.2013]
and (iii) Jeevanlal s/o Ratanchand Rathore Vs.
Deepchand s/o Roopchand Jain and Ors [2013(3) MPLJ
150] to canvass the proposition of law that the
compromise can go beyond the subject matter of suit.
In his submission, therefore, even if the dispute does
not exist, the Court is bound to record the compromise
after examining it within four-corner of Order 23 Rule

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3 of the CPC. There can be no dispute on the
proposition of law that the compromise can go beyond
the subject matter of suit, but that would not mean

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Page 4 of 8

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C/CRA/44/2020 ORDER

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compromise thereon should be recorded mechanically.
The proposition that the compromise can go beyond the
subject matter of suit would only mean that it can
comprehend the disputes other than those comprehended
in the suit. The parties settling the matter may as a
consideration for settlement, settle amongst
themselves other issues which might not have been made
the subject matter of the suit or for that reason, they
may agree to exchange amongst themselves their rights
and liabilities not comprehended in the suit.

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9. There can also be no dispute on the
proposition of law as pointed out in K. Venkata Seshiah
Vs. Kanduru Ramasubbamma (Dead) by LRs. [(1991) 3 SCC
338]; and Amteshwar Anand Vs. Virendra Mohan Singh and
Ors [(2006) 1 SCC 148] that there is a presumption of
satisfaction of lawfulness of compromise unless
contrary is proved. However, as pointed out above, the
compromise presupposes the existence of dispute and it
is only after the existence of a dispute is proved that
the presumption above stated can be raised.

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10. Furthermore, the plaint disclosing no cause
of action, would be liable to be rejected under Order
7 Rule 11(a) of the CPC. It is duty of the Court to
examine said aspect without even an application. The
averments in plaint are devoid of material particulars
as is evident from the following averment in the
plaint. According to the plaintiff, “some of the lands
in possession of the plaintiff” have been mutated on
record in favour of the defendant. Although the
plaintiff has pointed out that five parcels of land

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Page 5 of 8

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C/CRA/44/2020 ORDER

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are in his possession, he has failed to identify the
lands though in his possession and mutated in favour
of the defendant. Without identifying such lands, the
plaintiff has stated that “such lands” are sought to
be sold by the plaintiff “to some headstrong persons”;
albeit without identifying the headstrong persons in
the pleadings. The plaintiff has further stated that
he has learnt about such intention of the defendant
and thereupon he asked the defendant to mutate the
lands which have come to his share; in his name
whereupon the defendant disclosed his intention to
dispose of the lands and stated that he would not
mutate those lands in favour of the plaintiff. Here
also the plaintiff has failed to disclose the source
of information. Thus, clearly if the plaint was
examined under Order 7 Rule 11(a) of the CPC, it would
have been rejected and in the opinion of this Court,
no compromise under Order 23 Rule 3 of the CPC can be
recorded on the plaint which was liable to be rejected.

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11. That apart, as can be noticed from the
impugned order, the trial Court has relied upon Section
34 of the Specific Relief Act for drawing the
conclusion quoted in Para 2 of this order. The Court
has rightly pointed out that the suit for declaration
could be maintained if there was a denial or
disagreement between the parties. For ready reference
Section 34 of the Specific Relief Act can be reproduced
hereunder :

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“34. Discretion of court as to declaration of
status or right.—Any person entitled to any
legal character, or to any right as to any

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Page 6 of 8

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C/CRA/44/2020 ORDER

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property, may institute a suit against any
person denying, or interested to deny, his
title to such character or right, and the court
may in its discretion make therein a
declaration that he is so entitled, and the
plaintiff need not in such suit ask for any
further relief: Provided that no court shall
make any such declaration where the plaintiff,
being able to seek further relief than a mere
declaration of title, omits to do so.
Explanation.—A trustee of property is a
“person interested to deny” a title adverse to
the title of some one who is not in existence,
and whom, if in existence, he would be a
trustee.

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12. Clearly, the assertions on one hand and
denial or the interest in denial on the other hand
would the cause for a suit for declaration for
resolution of the dispute generated by such assertions
and denial. Thus, either the 'denial' or 'interest in
such denial' must manifest from the averments in the
plaint and in absence of specific averments with
material particulars, the suit under Section 34 of the
Specific Relief Act would not lie and the occasion of
recording the compromise thereon under Order 23 Rule
3 of the CPC would not arise. Bald, vague and general
statements in the plaint would not constitute a
dispute.

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13. For the foregoing reasons; in absence of
jurisdictional error, the revision application cannot
be entertained; hence rejected.

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14. Learned counsel for the petitioner states
that the petitioner would be advised to move the
statutory authorities including the revenue

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Page 7 of 8

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C/CRA/44/2020 ORDER

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authorities for fulfilling the compromise. The
petitioner would be at liberty to do so if otherwise
permissible in accordance with law and rejection of
this revision application would not come in his way in
such a case.

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(G.R.UDHWANI, J)

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BDSONGARA

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Page 8 of 8

Prabhurambhai Bhavabhai Brahman v. Hemjibhai Bhavabhai Brahman

Case brief

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Prabhurambhai Bhavabhai Brahman v. Hemjibhai Bhavabhai Brahman

Case brief

What is this about?

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