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2012 Supreme(Bom) 2007
High Court of Judicature at Bombay
B.P. DHARMADHIKARI, J.
Ramesh Balaji Ekhande
Versus
Namdeo Ganpat Gite & Others
Appeal From Order No.799 of 2008
Decided on : 17-10-2012
For the Appellant:R.A. Thorat a/w K.P. Mali, Advocates.
For the Respondents:R1, U.B. Nighot, Advocate.
Headnote:Civil Procedure Code, 1908 - Order I, Rules 1 and 2 - Disposal of suit filed by several plaintiffs.
Suit instituted by several plaintiffs as per Order I, Rules 1 and 2 of Code, cannot be disposed of by deleting name of one of plaintiffs. - In the present case, in a suit filed by several plaintiffs, name of plaintiff No. 6 was deleted at the instance of remaining plaintiffs. Held, the name of plaintiff No. 6 could not have been allowed to be deleted without his consent. In case majority demanded that his name should be deleted, and if he was not acting as per wish of majority, at the most a step to transpose him as defendant could have been taken.
In that event the trial Court would have been required to find out nature of his grievances. Suit could have been split into two suits. All this exercise is not undertaken by the trial Court. The suit instituted by several plaintiffs as per Order I, Rules 1 and 2, CPC could not have been disposed of by deleting name of plaintiff No. 6.
Civil Procedure Code, 1908 - Order XLIII, Rule 1, Section 96(3) - Bar to appeal against consent decree.
Since bar under Section 96(3) is not relevant as aggrieved was not a party at time of passing consent decree hence his appeal would be maintainable under Order XLIII, Rules 1(2) of CPC. - It is also apparent that in this situation act of the trial Court in dismissing suit of the plaintiff indirectly because of compromise entered into by other plaintiffs with landlord cannot be sustained. The respondent No. 1 was not a willing party to compromise. This is also apparent from the application moved by him on 25.1.1996. The decree passed by the trial Court their cannot be presumed to be a consent decree against which an appeal is barred under Section 96(3) of CPC. The said sub-section prohibits appeal from decree which is passed by the trial Court "with Consent of the parties". Here, respondent No. 1 has not given any such consent and at the time of passing of decree he was not party to the suit and therefore this bar is not relevant.
However, it appeals that before 1976. Amendment to CPC an appeal against the order of trial Court recording compromise was permitted. By 1976 amendment that clause has been deleted. Because of that deletion only simultaneously Rule 1-A has been added and in it the Law has permitted non-appealable orders to be challenged when a substantive appeal is filed against a decree. By way of further clarification there is sub-rule (2) which envisages appeal against decree passed in suit after recording of compromise. In such an appeal the appellant is permitted to contest the decree on the ground that compromise should not have been recorded. Therefore, it clearly shows that appeal filed by the respondent No. 1 under Section 96 of CPC was legally tenable and has been rightly entertained by that Court. The appeal was against a decree passed in suit after recording compromise and he contested the decree on the ground that compromise should not have been recorded.
1. Heard Mr. Thorat learned Counsel for the Appellant and Mr. Nighot for Respondent No.1.
2. A short contention of Advocate Thorat on behalf of the Appellant (Original Plaintiff No.5) is that the impugned Judgment dated 17.3.2008 passed by the District Judge 3 Nasik in Civil Appeal No. 125 of 1996 remitting the controversy back to the trial Court is perverse and shows total non-application of mind. He submits that the Appeal arises out Special Civil Suit No.57 of 1990 which has been disposed of finally on 1.2.1996 after recording of compromise. Thus, against the compromise decree Regular Civil Appeal was not maintainable. He has taken the Court through the relevant provisions to substantiate his contentions. In alternative and only to demonstrate that the controversy is now rendered infructuous and remand is only an empty formality, he has also invited attention of the Court to necessary facts.
3. Learned counsel Nighot has submitted that Respondent No.1 is one of the Plaintiffs and Suit has been disposed of as compromised without consent of Respondent no.1 and after deleting him from the array of parties. His contention therefore is that decree in Suit is not a Consent Decree so far as Respondent No.1 is concerned and as the name of Respondent no.1 has been deleted from the array of parties as Original Plaintiff impliedly his grievance has been dismissed without giving him necessary opportunity. He therefore, submits that even on that account, order of remand should not be interfered with.
4. The Suit was instituted by the proposed Cooperative Housing Society through its Promoter and the aspirant members for Specific performance. There was an Agreement entered into by the land owner with the Promoter and members on 31.3.1987 and out of total consideration of Rs.50,000/-, initially an amount of Rs.30,000/-was paid & on 8.4.1987, an amount of Rs.10,000/-was also paid. A dispute arose and therefore on 15.2.1990 Special Civil Suit No.57 of 1990 came to be filed by the Plaintiffs jointly along with proposed Cooperative Housing Society seeking specific performance of that contract. During pendency of the Suit on 15.10.1995 the proposed Society has passed a Resolution and it decided to prosecute the Suit and for that purpose gave Power of Attorney to one of the Plaintiffs who is the Appellant before this Court. Earlier, said Power of Attorney was with Respondent no.1. Here it needs to be noted that Respondent no.1 here contends that his Power of Attorney has not been terminated and he is also disputing the fact of passing of Resolution on 15.10.1995. However, these facts are not relevant at this stage for adjudication of the present A.O. Hence, no conclusive findings on these aspects need to be recorded.
5. On 21.12.1995 Plaintiffs filed an Application seeking deletion of the name of present Respondent No.1 as Plaintiff no.1 from the array of parties. They pointed out that the Resolution mentioned above and Power of Attorney executed in favour of present Appellant and also demand of additional amount of Rs,18,000/-from each member and its non-fulfillment by Respondent no.1. The trial Court has allowed that deletion and on the very same day Purshis for Compromise was also filed. The said Purshis was also opposed by present Respondent no.1 by filing purshis at Exhibit 73.
6. According to Respondent no.1 deletion was sought on the ground that he had resigned but, no document to substantiate such resignation or its acceptance by any Resolution was filed. On 15.1.1997 Respondent no.1 sought his restoration back as Plaintiff but, that was rejected by an Order dated 25.1.1996. The Respondent no.1 then sought stay of that order. But that was also rejected and after all these developments on 1.2.1996 compromise came to be recorded.
7. Appeal filed by the Respondent No.1/Original Plaintiff challenging the decree passed in Special Civil Suit is under section 96 of C.P.C. in this background. The Appellate Court has allowed that Appeal
