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TMI Blog2009 (2) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... . Leave granted. 2. Interpretation of Order XXIII Rule 1 of the Code of Civil Procedure is involved in this appeal. It arises out of a judgment and order dated 13.9.2006 passed by a learned Single Judge of the High Court of Punjab and Haryana setting aside an order dated 29.9.2005 passed by the Additional District Judge, Jagadhari whereby and whereunder the terms of settlement entered into by way of an agreement dated 25.4.1998 between some of the parties hereto were declared illegal as also null and void. 3. Indisputably, two suits were filed being Suit No.185 of 1989 and Suit No.303 of 1992 on 20.11.1989 and 21.3.1992 before the Additional Civil Judge, Jagadhari, Haryana and Senior Division Bench and before the Civil Judge, Jagadhari, Haryana, respectively. In the said suits, inter alia, the question as regards an order of mutation carried out in the Revenue records pursuant to or in furtherance of a transfer made by one Raghuvir Singh in favour of his wife and son stated to be under an oral gift deed representing himself as the successor of Bhanumal was in question. We would refer to the respective claims made in the said suits a little later. We may, however, at this stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed an application before the consolidation Officer, but no such application is available on the record; (v) that under the will, Raghubir Singh (defendant No.4) had a life estate on the property in dispute, but he has alienated/gifted/transferred the property of the Will to different persons, without any right, title and against the dictates of the will. Thus, this fact goes to prove the mala fide and fraudulent intention of Raghubir Singh, who got the disputed mutation forged and fabricated. The disputed mutation does not show the name of the person, in whose favour of the alleged oral hiba was made by Banu Mal; and (vi) that said Banu Mal had been residing with his religious Guru at Saharanpur (UP) and die to his illness, he was unable to work for about one year, prior to his death. He was completely confined to his bed and therefore, he was not present before the revenue officer, at the time of sanction of that mutation. 6. The cause of action for institution of the Suit No.303 of 1992 is said to have arisen as Raghbir Singh had not carried out the testator s intentions contained in the said Will dated 27.3.1943 and, thus, violated the terms of the trust and despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.218 and 220 of 1996. 10. It is not in dispute that during the pendency of the said appeals, the plaintiff and the respondent No.3 entered into a compromise. A compromise petition was filed in Civil Appeal No.254 of 1996, the terms whereof are as under : That the parties have compromised. As per compromise, the appeal of the appellant may kindly be allowed and the suit of the respondents may kindly be dismissed as withdrawn and the parties be left to bear their costs. The appellants are the absolute owners of the suit property. 11. The learned Additional District Jagadhari in whose court the said appeal was transferred for disposal recorded the compromise allowing the appeal and dismissing the suit of Veena Nirwani. A declaration was also made that the appellants therein (Respondents Nos. 1 to 3 herein) were the absolute owners of the said property. It is not in dispute that the appellant and/or other heirs and legal representatives of the said Munni Devi were not parties to the said compromise. A compromise was also said to have been entered into by Veena Nirwani-plaintiff with Raghbir Singh and others in Suit No.303 of 1992, the terms whereof read as under : 1. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without her knowledge and consent and despite the fact that she had got vested rights therein in terms of the judgment and decree passed by the trial court in suit No.185 of 1989. It was furthermore contended that prior to acceptance of the said compromise, it was obligatory on the part of the learned Judge to issue notice upon the appellant and others who derived benefit under the said judgment and decree dated 30.10.1996 passed in Suit No.185 of 1989. The learned Additional District Judge by an order dated 29.9.2005 accepted the said contentions of the appellant and set aside the compromise decree dated 25.4.1998 opining that the same was illegal, null and void. 14. Applications under Article 227 of the Constitution of India preferred thereagainst which were marked as C.R. 6473 and 6588 and 6589 of 2005 have been allowed by a learned Single Judge of the High Court by reason of the impugned Judgment. 15. In these appeals, except Veena, all other children of Munni Devi supported the appellant, although they did not file any application for setting aside the said consent decree. 16. Mr. Jayant Bhushan, learned counsel appearing on behalf of the appellant, would submit that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. XXX XXX XXX 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 subject-matter 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 agreement, compromise or satisfaction is the same as the subject-matter of the suit: Provided that where it is alleged by one party and dented 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 of the Code of Civil Procedure and the Court was bound to pass an order having due regard to the question as to whether she had a substantial question to be decided as against any of the other defendants. Aappellant, indisputably, claimed and was found to have rightly claimed a share in the suit property. Having got a decree in her favour, she was entitled to protect the same. By reason of an agreement between some of the parties or otherwise, a litigant cannot be deprived from the fruit of the decree. 22. Order XXIII, Rule 3 of the Code of Civil Procedure provides that a compromise decree is not binding on such defendants who are not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of. 23. The court has also a duty to prevent injustice to one of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. A consent decree, as is well-known, is merely an agreement between the parties with the seal of the court superadded to it. {See Baldevdas Shivl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which a contrary view has been expressed cannot be sustained. 25. It is also not a case where the compromise can be said to be a family arrangement. A family arrangement must be entered into by all the parties thereto. Compliance of the requirements laid down in Order XXIII, Rule 3 of the Code of Civil Procedure is imperative in character. A compromise or satisfaction must satisfy the conditions of a lawful agreement. 26. Causes of action of both the suits furthermore were different. The subject matter of the suit was also different although may be overlapping to some extent. If the compromise entered into by and between the parties to Suit No. 303 of 1999 was to be given effect to, the same for all intent and purport clearly goes to show that Bhanu Mal had the title over the property. The learned Trial Judge in Suit No.185 of 1989 having found that Bhanu Mal did not pass his title by way of oral Hiba/gift in favour of Raghbir Singh, subject to the conditions in the Will, his title must be held to have been accepted. Bhnau Mal, therefore, could dispose of his property in accordance with law. If Raghbir Singh did not acquire any title by reason of oral Hiba, on his death, sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable the plaintiff to defeat the purpose of Section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under Section 2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant s claim which, according to Crump J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked. Yet again in R. Rathinavel Chettiar v. V. Sivaraman [(1999) 4 SCC 89], this Court, stated the law, thus : 22. In view of the above discussion, it comes out that where a decree passed by the trial court is challenged in appeal, it would not be open to the plaintiff, at that stage, to withdraw the suit so as to destroy that decree. The rights which have come to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody s vested rights. The impugned judgment of the High Court in which a contrary view has been exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness box to substantiate the terms and conditions of the compromise nor did they examine any other witness. The purported circumstances that Smt. Veena Nirwani was at the helm of the affairs in respect of both the matters sought to be emphasized before us being not based on any material on record, we are of the opinion that the finding of the High Court that a comprehensive settlement was arrived at must be held to be wholly incorrect. 33. The High Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of Veena or at the instance of both the parties to the consent is a matter which is of little relevance so far as this Court is concerned inasmuch as the only issue which would arise for our consideration is the consequences of such preponement. If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also they were aware thereof. 39. In that view of the matter, it is difficult to accept the submission of Mr. Dwivedi that the appellant is estopped and precluded from raising the said contention of violation of the principles of natural justice or that only because he had sold some property, she cannot be allowed to approbate and reprobate. Our attention has been drawn to a recent decision in Kashmir Singh v. Union of India Ors. [(2008) 7 SCC 259] wherein this Court observed : 75. By reason of the Notification dated 19-10- 1978, the Central Government has not delegated its power. The 1966 Act has an extraterritorial application. It is not in dispute that no law has been enacted either by the State of Haryana or by the State of Himachal Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratification and adoption of the contract was mandatory, such contract was to be warranted by the terms of the incorporation. The words ratified and adopted have been dropped from the main section and in Section 19 of the 1963 Act, a proviso has been added that the company has accepted the contract and communicated such acceptance to the other party of the contract. An express ratification of the contract, therefore, is no longer warranted. In view of the fact that the Company, in the suit filed against Verma, sought for a declaration that it was the owner of the property, the same, in our opinion, would amount to acceptance of the contract and communication thereof to the other party thereto. The dicta laid down therein itself suggests that the said principles were laid down in the context of the provisions of the Specific Relief Act. In T.V.R. Subbu Chetty s Family Charities v. Raghava Mudaliar [AIR 1961 SC 797], whereupon again Mr. Dwivedi places reliance, this Court applied the said doctrine against a presumptive reversioner having regard to the fact and circumstances thereof. We are not concerned with such a case. 41. This brings us to the question of limitation. Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court within the prescribed period of limitation. If the statutory time limit expires the court cannot give the declaration sought for. 44. Mr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the date. 45. If the compromise has been accepted in absence of all the parties, the same would be void. But if the same having resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. {[See Mohd. Noorul Hoda v. Bibi Raifunnisa Ors. [(1996) 7 SCC 767]}. Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereto. He sent a telegram on 17-10-1988 and also a letter to the court concerned but, admittedly, the same was not responded to. Without issuing any further summons fixing another date for his appearance, the court fixed a date and having found the appellant absent on that date, fixed another date for ex parte hearing. On 13-12-1988 the suit was decreed with costs. 5. An execution case was filed by the respondent herein to execute the said decree. According to the appellant, the bailiff came to serve a copy of summons on him on 2-12-1991. The said summons having been served upon the appellant, he came to learn that ex parte decree has been passed. An application for setting aside the said ex parte decree was filed on 13-12-1991. By an order dated 17-1-1992 the learned Judge, City Civil Court, Hyderabad dismissed the said application inter alia opining: (1) (2) (3) An ex parte decree having been passed on 13-12-1988 and an application for setting aside the ex parte decree having been filed on 13-12-1991, the same was barred by limitation. XXX XXX XXX 12. The third ground on which the learned trial Judge dismissed the application for setting aside the ex parte dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s evidence and to establish satisfactorily that the defendant had knowledge of the decree more than 30 days before the date of the application. 48. Mr. Jayant Bhushan, then submits that as the principles of natural justice had been violated, the judgment would be a nullity. Strong reliance in this behalf has been placed on A.R. Antulay v. R.S. Nayak Anr. [(1988) 2 SCC 602], wherein, it was stated : 55. Shri Jethmalani urged that the directions given on February 16, 1984, were not per incuriam. We are unable to accept this submission. It was manifest to the Bench that exclusive jurisdiction created under Section 7(1) of the 1952 Act read with Section 6 of the said Act, when brought to the notice of this Court, precluded the exercise of the power under Section 407 of the Code. There was no argument, no submission and no decision on this aspect at all. There was no prayer in the appeal which was pending before this Court for such directions. Furthermore, in giving such directions, this Court did not advert to or consider the effect of Anwar Ali Sarkar case which was a binding precedent. A mistake on the part of the court shall not cause prejudice to anyone. He further added th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6. Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470], this Court held : 18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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