Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No. 4154/19 in S.C.Suit No. 703/18 1 Order.
MHCC010113952019
Presented on : 08-11-2019
Registered on : 08-11-2019
Decided on : 10-04-2023
Duration : 03Y:05M:03D
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4154 OF 2019
IN
S. C. SUIT NO. 703 OF 2018
Lokavidhi Properties Pvt. Ltd )...Applicant
(Defendant No.12)
IN THE MATTER BETWEEN
Dhanashree Narayan More and 261 Ors )...Plaintiffs
Versus
Sarvajanik Navratra Utsav
Mandal and 11 Ors )...Defendants
CORAM : HIS HONOUR JUDGE
SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 10th APRIL, 2023.
Mr. Cyrus Bharucha, Learned Advocate for defendant No. 12
Mr. Suraj Kudalkar, Learned Advocate for the plaintiffs.
ORDER
1. Defendant No. 12 has filed the Notice of Motion for
rejection of the plaint as per Order XXIII Rule 3A o f the Code of Civil
Procedure. Perused Notice of Motion and affidavit in reply.
2. Heard Learned Advocate Mr. Cyrus Bharucha for defendant
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NM No. 4154/19 in S.C.Suit No. 703/18 2 Order.
No. 12 and Learned Advocate Mr. Suraj Kudalkar for the plaintiffs.
3. On perusal of the record, it appears that the plaintiffs have
sought relief for setting aside the Compromise decree dated 04.11.2009
passed in Suit No. 6007 of 2002 in terms of Consent Terms dated
24.02.2006. It is the contention of Learned Counsel Mr. Cyrus Bharucha
for defendant No. 12 that compromise can be beyond prayers in the
plaint. He further submitted that defendants No. 4 and 44 were aware
of the Consent Terms. The suit was initially filed for installation of Idol
of the God. According to him, word “compromise” is avoided in prayer
clause of the plaint. The plaint is drafted mischievously. Present suit is
filed after lapse of eleven years for challenging the Consent Terms.
Defendant No.10 had entered into a Development Agreement dated
12/07/1994 with the owners i.e. Dr. Usha H. Agboatwala and others
being the owners of the suit property and Haji Kasam Chawl standing
thereon. The plaintiffs were the occupants/tenants of the said Chawl
and they had formed a representative body by the name of Haji Kasam
Chawl Sameeti being defendant No.9 therein. Defendant No.10 had
agreed to provide the said occupants/tenants permanent alternate
accommodation on ownership basis. According to him, the applicant
had deposited the amounts as provided in the Consent Terms with M/s.
Harakchand & Co. Advocates and Solicitors and some of the plaintiffs
have already collected the amounts payable to them. He also relied
upon observations of Hon'ble Supreme Court in para 17 in the case of
Triloki Nath Singh V/s. Anirudh Singh (D) thr. L.Rs. and ors. (Civil
Appeal No.3961 of 2010 decided on 06.05.2020) and submitted that
no appeal is maintainable against a consent decree and independent
suit cannot be filed to set aside a compromise decree on the ground that
the compromise was not lawful in view of the bar contained in Rule 3
A. By relying upon Order XXIII Rule 3A of the Code of Civil Procedure,
he submitted that the suit is liable to be dismissed.
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NM No. 4154/19 in S.C.Suit No. 703/18 3 Order.
4. On the contrary, Learned Advocate Mr. Suraj Kudalkar for
the plaintiffs submitted that defendant no.1 in the present matter is the
trust and defendants no.2 to 6 are office bearers of the trust. Main
object of the trust was to install idol of Goddess durig Navratri Festival.
AGM was not called for filing the consent terms. The plaintiffs came to
know about consent terms on 30/10/2017 and got certified copy on
13/11/2017. Defendant no. 12 was not party to the earlier suit
proceeding. The suit is filed by occupiers in the building. The defendant
is a trust for Idol of God. The prayer in the earlier suit was limited to
installation of Idol of God. In the course of redevelopment, issue of re
location of Idol of Goddess had arisen. The plaintiffs in the earlier suit
had no authority to compromise the matter on behalf of all the plaintiffs
in the present matter. By pointing out these aspects, he submitted that
the earlier suit was not filed in representative capacity and the said
decree is not binding upon the present plaintiffs. Thus, he prayed for
dismissal of the Notice of Motion.
5. On perusal of the record and after considering rival
submissions, compromise in the earlier suit is recorded by crossing the
limits of the prayers therein. No doubt, limits of the prayers in the plaint
can be crossed while recording compromise. At the same time, person,
whose interest is going to be affected by virtue of said compromise,
should be party to the suit proceeding. Admittedly, all the plaintiffs in
the present suit were not party to the earlier suit proceedings. Only few
plaintiffs in the present suit have compromised in the said matter. In
short, the decision in the earlier matter has resulted in affecting interest
of present plaintiffs adversely. It is for the reason that in the said
compromise, aspect of area of flats to be allotted to the tenants in re
development scheme is altered. Therefore, there is scope to agitate the
issue of fraud by the present plaintiffs. When the compromise is vitiated
with the defect of fraud, the said compromise decree can be questioned
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NM No. 4154/19 in S.C.Suit No. 703/18 4 Order.
as per proviso and explanation to Rule 3 in Order XXIII of the Code of
Civil Procedure. Furthermore, nothing has been brought on record to
show that leave of the court was obtained for compromising the matter
in a representative capacity. There is scope to attract Order XXIII Rule
3B of the Code of Civil Procedure.
6. Observations in paras 7 and 8 in the case of Ved Pal
(Dead) Through Legal Representatives And Others V/s. Prem Devi
(Dead) Through Legal Representatives And Others (2018) 9
Supreme Court Cases 496 are relevant and the same reads as under :
“7. In this case, we prefer to follow this
course keeping in view the bar contained in Order
23 Rule 3A of the Code of Civil Procedure, 1908
(for short “CPC”) for filing the suit in a case of this
nature and also another bar created under Section
96(3) CPC, which prohibits filing of any appeal,
though in this case it does not apply because the
dispute arose in second appeal filed under Section
100 CPC.
8. The purpose in making reference to
these two provisions is to show the legislative intent
which does not allow the parties to take recourse to
these legal remedies to challenge the compromise
once it is arrived at in the suit/appeal. The only
exception being if the challenge is founded on the
ground of fraud committed by the parties in
obtaining any judicial orders, the suit, in
appropriate case, may lie.”
7. In the light of above discussion, I pass following order :
ORDER
1. Notice of Motion No. 4154/2019 is dismissed.
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NM No. 4154/19 in S.C.Suit No. 703/18 5 Order.
2. Proceeding of N/m No. 4154/2019 is closed.
(SHRI. R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 10/04/2023 Mumbai.
1. Dictated on : 10/04/2023
2. Transcribed on : 11/04/2023
3. Draft submitted on : 11/04/2023
4. Signed on : 11/04/2023
5. Delivered to Certified :
Copy Section on
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NM No. 4154/19 in S.C.Suit No. 703/18 6 Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER (L.G)
12/04/2023 10.55 am Mr. Mohit M. Patange
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 10/04/2023
Judgment/Order signed by P.O. on 11/04/2023
Judgment/Order uploaded on 12/04/2023
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