Allowed

The Moon International Apartment Owners Resident Welfare Association v. Ashok Kumar Goel

Himachal Pradesh HC28 Aug 2017RSA/495/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal, holding that an application for compromise under Order 23 Rule 1 CPC is maintainable even after hearing concludes but before judgment. The lower court's dismissal was set aside, and the matter remanded to record the compromise.

What did the court decide?

The impugned judgment and decree of 15.7.2015 were set aside and the matter remanded to the First Appellate Court to record the compromise and pass appropriate orders.

The Moon International Apartment… — Civil Procedure and Limitation | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No. 495 of 2015.

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Date of decision: 28.8.2017.

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The Moon International Apartment …..Appellant Versus Ashok Kumar Goel ….Respondent

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?¹ No For the Appellant : Ms. Ritu Raj Sharma, Advocate. For the Respondent : Mr. Javed Khan, Advocate.

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Tarlok Singh Chauhan, Judge (Oral).

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The grievance made in this appeal under Section 100 of the Code of Civil Procedure is a peculiar one. The learned first Appellate Court after hearing arguments on the main appeal reserved the judgment. However, before the same could be pronounced, an application for compromise was moved by the contesting parties under Order 23 Rule 1 read with Section 151 CPC. But, the said application has been dismissed on the ground that it is not maintainable after placing reliance upon the judgment of the Hon’ble Supreme Court in Arjun Singh vs. Mohinder Kumar and others AIR 1964 SC 993 and judgment of this Court reported in Smt. Savitri Devi and others vs. Gauri Dutt and others 2000 (1) SLJ 404 .

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The learned first Appellate Court thereafter proceeded to determine the appeal on merits and vide impugned judgment and decree dated 15.7.2015 dismissed the same. Therefore, the only substantial question of law

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1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes

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that arises for consideration is as to whether the learned First Appellate Court could have dismissed the appeal on merits in view of the compromise arrived at between the parties dated 12.7.2015 placed on record with the application under Order 23 Rule 1 CPC ?

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As observed earlier, the parties are ad idem that a compromise inter se them had infact been arrived at on 13.7.2015 and the same was duly annexed with the application filed by them and in terms thereof, the appellant were required to withdraw not only the appeal but also the Civil Suit filed by them before the learned trial Court being C.S. No. 3-1 of 2010/2008 titled as Moon International Apartment vs. Ashok Kumar Goel. However, as observed earlier, the learned first Appellate Court dismissed the application by invoking provisions of Order 20 Rule 1 CPC and relying upon the judgments as cited

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above.

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I have heard learned counsel for the parties and gone through the

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records of the case carefully.

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Order 20 Rule 1 CPC reads thus:

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“ Judgment when pronounced.- (1) the Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders:

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Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.”

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Adverting to the judgments relied upon by the Court below in Arjun Singh’s case (supra), I really need not to refer to the same in detail as the judgment was considered by this Court in Smt. Savitri Devi’s case (supra) and it was observed as under:

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“11. Dealing with the scope and ambit of Order 20 Rule 1, Code of Civil Procedure, the Supreme Court in Arjun Singh vs. Mohinder Kumar and Others, AIR 1964 SC 993, has held:-

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“When once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) where the hearing is adjourned or (2) where the hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of the Court that Order 20 Rule 1 permits judgment to be delivered after an interval after the hearing is completed.”

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12. In the present case, a perusal of the record shows that the hearing in the appeal concluded on 11.5.1988 and the case was ordered to be posted for judgment on 16.5.1988. The application for amendment of the plaint was made by the plaintiffs on 13.5.1988, that is, after the conclusion of hearing and before the pronouncement of the judgment on 16.5.1988.

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13. In Arjun Singh vs. Mohinder Kumar (supra) the defendants were proceeded against ex parte. The plaintiff led ex parte evidence. Thereafter the cse was heard by the learned trial Court and posted for judgment. After the case had been heard, the defendants therein applied under Order 9 Rule 7, Code of Civil Procedure for setting aside the ex parte order. It was held by the Supreme Court that since the hearing stood concluded, no application under Order 9 Rule 7, Code of Civil Procedure was maintainable and that the only course open for the defendants was to apply under Order 9 Rule 13, Code of Civil Procedure for the setting aside ex parte decree after the decree was passed against them.”

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Apart from the above, it would be noticed that this Court in Savitri

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Devi’s case (supra) has considered the other judgments on the point as would be evident from paragraphs 15 to 17 of the report, which reads thus:

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“15. Following the said ratio laid down by the Supreme court in Arjun Singh vs. Mohinder Kumar (supra), the High Court of Punjab and Haryana in Madan Mohan Aggarwal vs. Smt. Mansa Devi and others, 1985 (2) P.L.R. 206, held that the application under Order 18 Rule 17-A, Code of Civil Procedure for additional evidence was not maintainable after the arguments in the case had concluded. 16. Again in Food Corporation of India vs. M/s Krishna Rice and General Mills, 1990 (2) P.L.R. 383, an application under Order 6 Rule 17, Code of Civil Procedure, for the amendment of the plaint made after the conclusion of the hearing and before the pronouncement of the judgment was held to be not maintainable.

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17. As pointed out above, in the present case also, the application under Order 6 Rule 17, Code of Civil Procedure, made by the plaintiffs for the amendment of the plaint after the hearing in appeal stood concluded on 11.5.1988 and before the pronouncement of the judgment on 16.5.1988, since the hearing in appeal stood concluded as on the date of making of application for amendment of the plaint, the same was not maintainable and, as such, stands rightly dismissed by the learned first Appellate Court. The question is accordingly answered in the affirmative.”

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Now, therefore, the moot question that arises for consideration is as to whether the Court below has correctly placed reliance upon the provision of Order 20 Rule 1 CPC and judgments in Arjun Singh’s case (supra) and Smt. Savitri Devi’s case (supra) while rejecting the application for recording the compromise under Order 23 Rule 1 read with Section 151 CPC. The answer definitely is in the negative for the obvious reason that by moving the application for compromise, which otherwise stood admitted by both the parties, the parties were not seeking any fresh consideration, re-hearing or re-opening of any issue and were simply bringing to the notice of the Court that they arrived at compromise and therefore, this appeal should be disposed of on the basis of the compromise and not on merits.

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The decisions as relied upon by the learned first Appellate Court were not at all applicable as in those decisions the parties had made prayers which would re-open the case that had been heard finally and reserved for pronouncement of judgment, while in this case, the Court was only required to pass a final judgment on the basis of the compromise arrived at between the parties.

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Once that be so, obviously the order passed by the learned first Appellate Court in the application on 15.7.2015 as also in the appeal cannot withstand judicial scrutiny and as a result whereof, the order dated 15.7.2015 passed in the application and judgment and decree dated 15.7.2015 are setaside and the matter is remanded back to the learned first Appellate Court to record a compromise in terms of the application jointly preferred by the parties under Order 23 Rule 1 read with Section 151 CPC and thereafter pass an appropriate orders in terms thereof.

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The substantial question of law is answered accordingly.

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The parties are directed to appear before the learned first Appellate Court on 15.9.2017.

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The appeal is disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own costs.

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( Tarlok Singh Chauhan )

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August 28, 2017. Judge. (GR)

The Moon International Apartment Owners Resident Welfare Association v. Ashok Kumar Goel

Case brief

What is this about?

What did the court decide?

The Moon International Apartment Owners Resident Welfare Association v. Ashok Kumar Goel

Case brief

What is this about?

What did the court decide?

What the court decided

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