2011 Supreme(Guj) 278

2011 (2) GCD 1765 (Guj)
Hon’ble Mr. Justice Anant S. Dave
Rameshbhai Chaturbhai Prajapati
Versus
Minaxiben WD/o Rasiklal tilakram
Special Civil Application No. 9400 of 20091—Decided on 28/04/2011

Point in Issue :
Whether in facts of the case petitioners are entitled to decree on basis of compromise between the parties.

Headnote:Head Note :

       Bombay Tenancy and Agricultural Lands Act, 1948 — Sections 17(o), 20, 32(o), 43, 43(1)(i) and 43(2) — [Indian] Contract Act, 1872 (Central Act 9 of 1872) — Sections 23 and 24 — Transfer of Property Act, 1882 (Central Act 4 of 1882) — Section 53-A — Civil Procedure Code, 1908 (Central Act 5 of 1908) — Section 151 and Order 23 Rule 3 — Urban Land (Ceiling and Regulation) Act, 1976 — Section 20 — Consent decree — Declaring that registered sale deeds of agricultural land binding — Application for — Rejection — Sustainability — A decree could be passed on basis of lawful agreement between the parties as provided under Order 23 Rule 3 CPC — Explanation to proviso to Order 23 Rule 3 clearly provides that agreement or compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful agreement — In the case when admittedly subject land of the consent terms is a restrictive tenure land and governed by restriction imposed under Section 43 of the Tenancy Act of 1948. It could not be transferred without the previous sanction of the Collector — Therefore, rejection of the prayer to draw a decree in terms of the consent terms/agreement forbidden by law can not be said to be illegal — Trial Court has thus neither failed to exercise jurisdiction nor illegally exercised in rejecting the prayer warranting any interference at the hands of the Court in exercise of extraordinary jurisdiction under Article 227 of the Constitution.

       Held :

       The nature of the consent terms was also examined by the learned Judge in the context of Section 43 of the Tenancy Act whether a decree could be passed under Order XXIII Rule 3 of the Code of Civil Procedure. While examining the above aspects, the learned Judge has also found that the subject land was restricted land under Section 43 of the Tenancy Act and, therefore, the agreement was not lawful and any agreement whether void and/or voidable under the Indian Contract Act for which recourse cannot be taken to Order XXIII Rule 3 of the Code of Civil Procedure and the above view and reasoning of the learned Judge cannot be said to be contrary to law or illegal in any manner since Explanation to proviso to Order XXIII Rule 3 of the Code of Civil Procedure clearly provides that the agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this Rule. Thus, if the above Explanation to proviso to Order XXIII Rule 3 of the Code of Civil Procedure is construed in juxtaposition to Sections 23 and 24 of the Indian Contract Act, 1872, it defines unlawful contract/agreement forbidden by law and, therefore, when, admittedly, subject land of the consent terms is ‘restrictive tenure land’ and governed by the restriction imposed under Section 43 of the Tenancy Act, viz. ‘without previous sanction of the Collector, no such land shall be alienated/transferred’, rejection of the prayer to draw a decree in terms of the consent terms/agreement forbidden by law as above cannot be said to be illegal, which deserves any interference by this Court in exercise of the jurisdiction under Article 227 of the Constitution of India. The Trial Court has neither failed to exercise jurisdiction nor illegally exercised jurisdiction warranting any interference at the hands of this Court in exercise of extraordinary jurisdiction.

        [Para 19]

       Law Laid Down :

       No terms can be recorded contrary to the provisions of Contract Act in exercise of power under Order 23 Rule 23 and Section 151 CPC.

       Case Law Analysis :

       Banwari Lal vs. Chando Devi, AIR 1993 SC 1139 [Para 14];; Shashikant vs. Statem, AIR 1970 Guj. 204 [Para 14];; State of Maharashtra vs. Babu Govind Gavate, AIR 1996 SC 904 [Para 14];; Mohammad Ibrahim vs. Sugrabi, AIR 1955 Nag. 272 [Para 14.1];; Sm. Sumitra Devi Agarwala vs. Sm. Sulekha Kundu, AIR 1976 Cal. 196 [Para 15];; V. Narasimharaju vs. V. Gurumurthy Raju, AIR 1963 SC 107 [Para 15];; Shri Parshuram Kathod Gaikar vs. Pandu Mahadu Hard, MANU/MH/0609/1993 [Para 15];; Lotan Ramchandra Shimpi vs. Shankar Ganpat Kayasth, MANU/MH/0784/1994 [Para 15];; Himatrao Ukha Mali vs. Popat Devram Patil, AIR 1999 Bom. 10 [Para 15];; Banwari Lal, AIR 1993 SC 1139 [Para 16.1];; Jayamma vs. Maria Bai, AIR 2004 SC 3957 [Para 17].—Relied on

       Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai, 1985 GLH 53 [Para 12].— Distinguished