2003 Supreme(SC) 598

2003(4) Supreme 513
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
V.N. Khare, CJI., S.B. Sinha and AR. Lakshmanan, JJ.
Sh. Dwarka Prasad Agarwal (D) by Lrs. and Anr. -Appellants
versus
B.D. Agarwal & Ors. -Respondents
Civil Appeal No. 4782 of 1996
With
C.A. No. 4783 of 1996
And
W.P. (C) No. 527 of 1993
Decided on 7-7-2003
Counsel for the Parties :
For the Appearing Parties : Dr. A.M. Singhvi, P.P. Rao, Shanti Bhushan, R.C. Srivastava, Sunil Gupta, T.L.V. Iyer and Kailash Vasdev, Sr. Advocates, P.D. Tyagi, Vivek Vishnoi, Gaurab Banerjee, Niraj Sharma, Ankur Modi, N.K. Mody, Y.P. Mahajan, Hemant Sharma, S.W.A. Quadri, S.N. Terdol, J.K. Bhatia, B.K. Prasad, P. Parmeswaran, Syed Ali Ahmad, Syed Tanweer Ahmad, G.D. Upadhyay and R.D. Upadhyay, Advocates.

IMPORTANT POINT
The writ court has no jurisdiction to determine an issue on private dispute over a property or right under a partnership, therefore settlement of a private dispute between the parties to a writ proceeding is not permissible in law.

Headnote:(i) Constitution of India-Article 226-Writ proceedings-Settlement of private dispute, permissibility-Partnership firm carrying business of publication of newspaper-A large number of private disputes between parties pending adjudication before Civil Courts-Reliefs sought for in writ petition primarily revolved round order of authentication of declaration made by one of the respondents in terms of provisions of Press and Registration Act-Agreement recording terms of settlement between parties on their private dispute executed on 29.6.1992-Application for disposal of writ petition in terms of said agreement passed on same day-Writ petition was not ready for hearing on the said date-High Court did not have any jurisdiction to record the compromise-Public law remedy could not be resorted to having regard to facts and circumstances of the case.

       Held : A writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is concerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as contra distinguished from a dispute involving public law character. It is also well-settled that a writ remedy is not available for resolution of a property or a title dispute. Indisputably, a large number of private disputes between the parties and in particular the question as to whether any deed of transfer was effected in favour of M/s. Writer & Publishers Pvt. Ltd. as also whether a partition or a family settlement was arrived or not, were pending adjudication before the Civil Courts of competent jurisdiction. The reliefs sought for in the writ petition primarily revolved round the order of authentication of the declaration made by one of the respondents in terms of the provisions of the said Act. The writ petition, in the factual matrix involved in the matter, could have held to be maintainable only for that purpose and no other. An agreement recording terms of settlement between the parties on their private dispute was executed on 29.6.1992. The application for disposal of the writ petition in terms of the said agreement as also the order of the High Court in M.P.No. 802 of 1992 was passed on the same day. The writ petition was not ready for hearing on the said date. Admittedly, Dwarka Prasad Agarwal was not a signatory to the said agreement. He was also not put on notice there-about. Assuming that he had engaged an Advocate, keeping in view the fact that he was a proforma respondent therein, the said learned Advocate was merely required to watch the proceedings as no relief had been claimed against him. The question of the learned advocate of Dwarka Prasad Agarwal not raising any objection as regard legality or otherwise of the said agreement dated 29.6.1992 neither directly nor indirectly arose for consideration before the High Court. He also did not make any submission as regard the lawfulness or otherwise of the said compromise. He merely stated that he had no instruction in the matter. In that view of the matter, it was obligatory on the part of the High Court to issue notice to Late Dwarka Prasad Agarwal in respect thereof or to allow sufficient time to the learned Advocate to obtain proper and adequate instructions. In the aforementioned premise, the High Court was furthermore required to apply its own mind for the purpose of arriving at a finding as to whether it, in public law remedy, could record the compromise and dispose of the said writ petition in terms thereof. The order dated 29.6.1992 passed in M.P.No. 280 of 1992 was purported to have been clarified by the High Court in its order dated 13.11.1992 in the review petition being MCC No. 477 of 1977. The said order clearly demonstrates a total non-application of mind on the part of the High Court. (Paras 28 and 30)

       The High Court also failed and/or neglected to take into consideration the fact that the compromise having been entered into by and between the three out of four partners could not have been termed as settlement of all disputes and in that view of the matter no compromise could have been recorded by it. The effect of the order dated 29.6.1992 recording the settlement was brought to the notice of the High Court, still it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to be an order of the High Court, required to be the implemented by the Courts and the statutory authorities. (Para 32)

       (ii) Constitution of India-Article 32-Civil Procedure Code, 1908-Section 41-Writ petition-Applicability of provisions of Civil Procedure Code-Writ Court has also no jurisdiction to determine an issue on private dispute over a property or right under a partnership.

       Held : In terms of Section 141 of the Code of Civil Procedure, the provisions thereof are not applicable in a writ proceeding. No provision of the Code of Civil Procedure has been made applicable in terms of the rules framed by the High Court of Judicature at Nagpur dated 25.9.1951 framed under Article 225 of the Constitution of India. In any event the applicability of the provisions of the Code of Civil Procedure, if any, would be only with regard to the procedural and machinery provisions contained therein but thereby no new right could be created. Even if the provisions of Order 23, Rule 3 of the Code of Civil Procedure and/or principles analogous thereto are held to be applicable in a writ proceeding, the Court cannot be permitted to record a purported compromise in a casual manner. It was suo motu required to address itself to the issue as to whether the compromise was a lawful one and, thus, had any jurisdiction to entertain the same. It may be true, as has been contended by Mr. Rao, that the writ petition was maintainable at the threshold. But once it is held that by reason of the purported settlement between the private parties, the High Court was not required to issue any writ, it could only either permit the petitioner to withdraw the writ petition and dismiss the same as having become infructuous. The High Court derives its jurisdiction in terms of Article 226 of the Constitution of India, if an occasion arises therefor, to make judicial review of the order passed by a statutory authority. It is beyond any cavil that no writ can be issued if the disputes involve private law character. The writ court has also no jurisdiction to determine an issue on private dispute over a property or right under a partnership. While purporting to record a compromise, the writ court cannot enlarge its jurisdiction by directing that the suits pending in different courts filed or different causes of action would also stand compromised. By reason thereof the writ court would be entrenching upon the jurisdiction of the civil court indirectly which it could not do directly. For the purpose of granting permission even for withdrawal of suit in terms of Order 23, Rule 1 of the Code of Civil Procedure, the civil courts themselves were required to apply their mind as to whether having regard to the dispute between the parties, a case therefor has been made out or not. The civil court is required to act on its own and not on the basis of any direction of any other court determining a totally foreign issue. (Para 35)

       (iii) Civil Procedure Code, 1908 as amended by Code of Civil Procedure (Amendment) Act, 1976-Order 23, Rule 3-Compromise-Powers of Court to record-Constitution of India-Article 226, 32.

       Held : A writ court can pass an effective order provided it has jurisdiction in relation thereto. With the enlargement of the power of the court recording compromise in view of the Code of Civil Procedure (Amendment) Act, 1976, the responsibility and duty of the court also has increased. By reason of Order 23, Rule 3 of the Code of Civil Procedure, a party can challenge the legality of the compromise only before the same court and in that view of the matter the court was enjoined with a solemn duty to decide such controversy in a lawful manner. A question as to whether a compromise is void or voidable under the Indian Contract Act or any other law for the time being in force, would have, thus, to be determined by the court itself. Once it is held that the agreement or the compromise was fraudulent, the same per se would be unlawful and the court is required to declare the same as such. (Para 36)

       (iv) Constitution of India-Article 226-Writ proceedings-Jurisdiction to record compromise-Order passed by Court without jurisdiction is a nullity.

       Held : It is now well-settled that an order passed by a court without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did not have any jurisdiction to record the compromise for the reasons stated hereinbefore and in particular as no writ was required to be issued having regard to the fact that public law remedy could not have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and consequently are liable to be set aside. They are declared as such. (Para 37)

       (v) Constitution of India-Article 19-Infringement of fundamental right-Question regarding, cannot be gone into when facts are disputed.

       Held : This Court would have entered into the question, if the facts were undisputed or admitted. The question as regard infringement of fundamental right and that too under Article 19 of the Constitution of India cannot be gone into when the facts are disputed. Whether Dwarka Prasad Agarwal and consequently the substituted petitioners are owners of the newspapers and if so to what extent being disputed, it cannot be said, that by reason of the impugned order dated 3.9.1992 passed by the first respondent herein alone, the fundamental right of the petitioners under Article 19 had been infringed. (Para 39)