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2013 Supreme(Bom) 225
In the High Court of Bombay at Aurangabad
S.S. SHINDE
Akhil Mansuklal Mehta
Versus
Sheetal Deepak Karamchandani
Writ Petition No. 7187 of 2012 With Civil Application No. 11430 of 2012
Decided on : 29-01-2013
For the Petitioner:P.M. Shah, senior counsel i/b Gulam Dastgir Shaikh, Advocate.
For the Respondent:R.R. Mantri h/f R.R. Sancheti, Advocates.
Headnote:Civil Procedure Code, 1908 - Order XXIII, Rule 3-A - Applicability of.
Where compromise between parties recorded by High Court in presence of parties and their respective Advocates therefore mandate of Order XXIII, Rule 3-A of Code fulfilled. - The conditions which normally must be satisfied for validly invoking the provisions of Order XXIII, Rule 3 of CPC and for passing of such decree. Are as under :
(i) There should be a lawful agreement or compromise;
(ii) This compromise has to be in writing and signed by the parties,
(iii) The compromise must be recorded by the Court.
(iv) A decree on such compromise can be passed so far it relates to the parties to the suit but may extend to a special matter which is not the subject-matter of the suit .
In the facts of this case, the consent terms are signed by the parties and their respective advocates. The compromise is recorded by the Court. The parties were present before the Court. Their respective advocates were also present before the Court when the Court has read and recorded the compromises. Therefore, it appears that mandate of Order XXIII, Rule 3 of CPC is fulfilled in the present case. [AIR 1997 PH 155 - Relied on].
1. Rule. Rule made returnable forthwith. By consent, heard finally.
2. This writ petition is filed challenging the order dated 20.7.2012, passed below Exh.17 in R.C.S. No. 330 of 2012, by the learned C. J. J. D. Rahata, District Ahmednagar.
3. It is the case of the petitioner that on 24.9.1996, the petitioner and respondent purchased (first) property bearing old survey No. 51/4 (new 51/5) situated at Shirdi, Tq. Rahata, District Ahmednagar, for consideration of Rs.4,50,00/-and the names the petitioner and the respondent are mutated in the revenue record. Thereafter, they purchased (second) property admeasuring 18 R out of 44 R from survey No. 51/1 situated at Shirdi, Tq. Rahata, District Ahmednagar for consideration of Rs.1,26,000/-(second property) out of the funds of the petitioner himself and his name is also mutated in the 7x12 extract. It is further case of the petitioner that the petitioner alongwith respondent purchased jointly (third) property at village Vihigaon, Tq. Shahapur, District Thane from survey No. 351 admeasuring 1 H 48 R and survey No. 352 admeasuring 2H from the same village, jointly in the name of the petitioner and the respondent. The said properties was purchased during the period from 24.11.1996 to 17.4.1998.
4. It is the case of the petitioner that the petitioner had faced with some financial crises, therefore, he sold 50% share from the third party to one Prakash Dwarkadas Jhunjhunwala on 25.2.2011 for consideration and remaining 50% share of the respondent was kept as it is. It is further case of the petitioner that on 20.11.2011 respondent lodged a complaint with Kasara police station and on 9.3.2012 F.I.R. No. I13 of 2012 came to be registered and the petitioner was arrested and sent to judicial custody on 17.3.2012 by the learned J.M.F.C. Shahapur. It is further case of the petitioner that on 12.4.2012 the learned Sessions Judge at Kalyan, has released the petitioner after one month on bail, on condition to attend Kasara police station on 15th and 25th of every month between 10.00 a.m. to 12.00 noon until further orders. It is further case of the petitioner that, as the petitioner was harassed and abused by investigating officer, Kasara police station, he filed an application to Sessions Judge at Kalyan and accordingly police station is changed from Kasara to Mahatma Phule police station, vide order dated 16.6.2012. It is further case of the petitioner that on 7.3.2012, the respondent filed second complaint to police station Shirdi with a contention that she has purchased the second property out of her own funds and further falsely contended that the petitioner is trying to dispose of the first and second property by preparing fraudulent documents. The respondent herein filed R.C.S. No. 330 of 2012 in the Court of learned C.J.J.D. Rahata for declaration and injunction in respect of the suit property. It is the case of the petitioner that the respondent approached the petitioner and stated that she is ready to withdraw the complaint with Kasara police station and further expressed her willingness to purchase the share of the petitioner in the first and second properties and also offered to settle the dispute regarding 3rd property by stating that release deed should be executed and accordingly it was informed by her to the petitioner to come to court at Rahata. It is further case of the petitioner that on 11.6.2012, the respondent took the petitioner to the premises of Rahata civil court and orally informed about pendency of the suit and filing of consent terms. It is further case of the petitioner that the petitioner was tuted by respondent to sign on each and every papers and respondent also engaged advocate for the petitioner. The said advocate was not paid any fees by the petitioner nor the petitioner known the advocate nor he was willfully engaged. On the same, pursis is filed by advocate regarding the waiver of summons and also got executed the consent deed by playing fraud, exerci
