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2024 Supreme(SC) 395
SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Ajay Ishwar Ghute & Ors. – Appellants
Versus
Meher K. Patel & Ors. – Respondents
Civil Appeal No. 4786 of 2024
Decided on : 30-04-2024
For the Petitioner(s): Mr. Rajesh Vishnu Adrekar, Adv. Ms. Usha Nandini V., AOR
For the Respondent(s): Mr. Karl Tamboli,Adv. Ms. Tahira Karanjawala,Adv. Mr. Arjun Sharma,Adv. Mr. Purazar Fouzdar,Adv. Ms. Varuna Juneja,Adv. Mr. Jai Vardhan Malaviya,Adv. For M/S. Karanjawala & Co., AOR Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Mr. Sourav Singh, Adv. Mr. Aditya Krishna, Adv. Mr. Aadarsh Dubey, Adv. Mrs. Preet S. Phanse, Adv. Mr. Prashant R. Dahat, Adv. Mr. Puneet Yadav, Adv. Mr. Sourabh Gupta, Adv. Mr. Ujjwal Choudhary, Adv. Mr. T. R. B. Sivakumar, AOR
IMPORTANT POINTS
(1) Consent order – An order passed in terms of “Minutes of Order” tendered on record by Advocates representing parties to proceedings is not a consent order – It is an order in invitum for all purposes.
(2) “Minutes of Order” – When a document styled as "Minutes of Order” signed by Advocates for parties is tendered on record, Court must first examine whether it will be lawful to pass an order in terms of “Minutes of Order” – Court must consider whether all necessary parties have been impleaded to proceedings in which “Minutes of Order” have been filed.
Headnote:
(A) “Minutes of Order” – When a document styled as "Minutes of Order” signed by Advocates for parties is tendered on record, Court must first examine whether it will be lawful to pass an order in terms of “Minutes of Order” – Court must consider whether all necessary parties have been impleaded to proceedings in which “Minutes of Order” have been filed – Court must consider whether third parties will be affected by order sought in terms of “Minutes of Order” – If Court is of the view that necessary parties were not impleaded, Court ought to allow petitioner to implead them – On failure of petitioner to implead them, Court must decline to pass an order of disposing of petition in terms of “Minutes of Order” since order of Court passed without hearing necessary parties would be illegal – Order passed by Court based on “Minutes of Order” is not a consent order – It is an order in invitum – Only if Court is satisfied that an order in terms of “Minutes of the Order” would be legal, Court can pass an order in terms of “Minutes of Order” – While passing an order in terms of “Minutes of Order”, Court must record brief reasons indicating application of mind – Advocates who sign and tender “Minutes of Order” have greater responsibility – Before they sign “Minutes of the order”, Advocates have important duty to perform as officers of Court to consider whether order they were proposing will be lawful – They cannot mechanically sign the same. (Paras 17 and 18)
(B) Civil Procedure Code, 1908 – Order XXIII Rule 3 – Consent order – Even if parties file consent terms, while accepting consent terms in terms of Rule 3 of Order XXIII of CPC, Court is duty-bound to look into legality of compromise – Court has jurisdiction to decline to pass a consent order if same is tainted with illegality – However, order passed by Court in terms of compromise recorded in consent terms is a consent order which will not bind persons who were not parties to consent terms unless they were claiming through any of parties to consent terms – An order passed in terms of “Minutes of Order” tendered on record by Advocates representing parties to proceedings is not a consent order – It is an order in invitum for all purposes. (Paras 19 and 20)
Facts of the case:
Main issue that arises in this case is whether High Court was justified in passing a drastic order in exercise of writ jurisdiction under Article 226 of Constitution of India permitting 1st and 2nd respondents (writ petitioners) to construct a compound wall under police protection.
Findings of Court:
After 1st and 2nd respondents implead all necessary parties to Writ Petition, same shall be decided finally in accordance with law. Construction of compound wall made by 1st and 2nd respondents shall be subject to final outcome of restored petition. Therefore, if construction is found to be illegal or if it is found that it adversely affects rights of third parties, High Court may pass order of demolition of compound wall or a part thereof.
Result : Appeal partly allowed.
JUDGMENT :
ABHAY S. OKA, J.
1. The main issue that arises in this case is whether the High Court was justified in passing a drastic order in the exercise of writ jurisdiction under Article 226 of the Constitution of India permitting the 1st and 2nd respondents (writ petitioners) to construct a compound wall under police protection. The order passed by a Division Bench of the High Court on 16th March 2022 is in terms of the “Minutes of Order” tendered to the Court by the advocates representing the parties duly signed by them. The practice of passing orders based on “Minutes of Order” submitted by the advocates representing the parties prevails perhaps only in the High Court of Judicature at Bombay (for short, ‘the Bombay High Court’). The present appellants applied for a review of the order dated 16th March 2022, which has been rejected by the impugned order dated 20th July 2023. Even the order dated 16th March 2022 is under challenge in this appeal.
FACTUAL ASPECTS
2. A few factual aspects will have to be noted. Arbitration Petitions were filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, ‘Arbitration Act’) before a Single Judge of the Bombay High Court. One petition was filed by the 1st respondent against one Urvaksh Naval Hoyvoy and others. Taz Naval Nariman and another filed the other petition. Consent terms were filed in the Arbitration Petition preferred by the 1st respondent. It appears that during the pendency of the proceeding of the Arbitration Petition, Urvaksh Naval Hoyvoy was arrested by police based on a First Information Report. In terms of the consent terms dated 28th April 2018, the learned Single Judge passed an order dated 30th April 2018. Further, order dated 10th May 2018 passed by the learned Single Judge records that the process of handing over possession of the suit property by the respondents to the 1st respondent has commenced. The dispute in the Arbitration Petitions related to the lands of Parsi Dairy Farm.
3. The 7th respondent in Arbitration Petition No. 451 of 2018 filed an interim application in the disposed of Arbitration Petitions more than two years after filing consent terms. It records that the High Court had directed the police to give police protection to the parties for completing the process of handing over possession. A compound wall was to be constructed in terms of the consent terms. The occasion for filing the application arose as, according to the 7th respondent in the Arbitration Petition, local persons obstructed the work of the construction of the compound wall. The learned Single Judge of the Bombay High Court disposed of the interim application by his order dated 12th February 2021. The relevant portion of the said order reads thus:
“2………………………………………………… In the application it is stated that in order to safeguard the suit property, the parties tried to build a wall on the suit property and which is in their possession. On commencement of the work of building the wall, the parties have faced several difficulties and which are enumerated in paragraphs 5(a) to 5(d) of the application. It is stated that local persons have time and again obstructed building of the wall and despite several requests made to the Talasari Police Station, nothing has been done. It is stated that a wall is being built on the suit property in order to secure the same and though assistance of the police was sought on several occasions, the local villagers time and again interfered with the building of the said wall and the police have rendered no assistance in that regard.
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3.…………………………………………………
4. In these circumstances, it is directed that the police/Tahasildar/Collector/Gram Panchayat office and all other concerned Government Authorities shall offer all assistance to the applicant and the other interested respondents (respondent Nos.2 to 8) to construct a wall to safeguard the suit property. It is further directed that the local Police Station shall ensure that thes
