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2013 Supreme(UK) 513
SUPREME COURT OF INDIA
Hon’ble Mr. Justice Anil R. Dave and Hon’ble Mr. Justice Dipak Misra
Civil Appeal No. 10755 of 2013
DALJIT KAUR & ANR. – Appellants
Versus
MUKTAR STEELS PVT. LTD. & ORS. – Respondents
Decided on : 19.11.2013
For the Respondents:Mrs. D. Bharathi Reddy, Advocate
Headnote:Civil Procedure Code, 1908, Proviso to Or. XXIII, Rule 3 and Sec. 96(3) — Sec. 96(3) contemplates non-appealability of a decree passed by the court with the consent of parties — When one of the parties sets up a compromise and the other disputes it and the court is forced to adjudicate on whether there was a compromise or not — And to pass a decree, it could not be understood as a decree passed by the court with the consent of the parties — And only when the acceptance of the compromise receives the imprimatur of the court and it becomes a decree, or the court proceeds to pass a decree on merits rejecting the compromise set up, it becomes appealable, unless of course, the appeal is barred by Section 96(3) Civil Code. (Paras 14, 15, 16 and 17)
nhokuh izfØ;k lafgrk] 1908] vkns’k 23] fu;e 3 vkSj /kkjk 96¼3½ ds izko/kku & /kkjk 96¼3½ esa vuq/;kr fd U;k;ky; }kjk i{kksa dh lgefr ls ikfjr fMØh vihy ;ksX; ugha & tc ,d i{k le>kSrk LFkkfir djrk gS o vU; bls fookfnr djrk gS vkSj U;k;kky; dks foo’k fd;k tkrk gS U;k; fu.kZ;u ds fy, fd le>kSrk Fkk fd ugha & vkSj fMØh ikfjr djus ds fy, ;g ugha le>k tk ldrk fd i{kksa dh lgefr ls fMØh ikfjr Fkh & vkSj rHkh tc lgefr dh LohÑfr dks U;k;ky; dh btktr izkIr gksrh gS vkSj ;g fMØh gksrh gS] ;k vnkyr dk;Zokgh djrh gS xq.kkxq.k ij fMØh ikfjr djus ds fy, lgefr dh LFkkiuk dks vx`ghr djus ij] rc ;g vihy ;ksX; gS] vxj vihy /kkjk 96¼3½] flfoy lafgrk ckf/kr ughaA ¼izLrj 14] 15] 16 vkSj 17½
Dipak Misra, J. — Delay condoned.
2. Leave granted.
3. This appeal, by special leave, is directed against the judgment and decree dated 7.3.2013 passed in Second Appeal No. 285 of 2008 by the High Court of Andhra Pradesh whereby the learned single Judge has affirmed the judgment and decree passed by the first appellate court concurring with the view that the decree being a consent decree was not assailable in appeal, and further giving the stamp of approval to the conclusion that the learned trial Judge, after conducting due enquiry as envisaged under the proviso to Order XXIII Rule 3 of the Code of Civil Procedure (CPC), had passed a consent decree.
4. The broad essential facts giving rise to the appeal are that the first respondent instituted OS No. 2261 of 1988 in the Court of IVth Additional Judge, City Civil Court, Hyderabad for declaration to the effect that the agreements and arrangements between the parties are in the nature of “Industrial Licence” and not “Leave and Licence” in respect of the suit premises situate in private industrial estate Sanathnagar, Hyderabad and also for permanent injunction. The suit was originally filed against the defendant No. 1, the Managing Partner of the firm but after his death defendant Nos. 2 to 6 were brought on record.
5. The firm filed its written statement contending, inter alia, that the terms and conditions of the agreement entered into between the plaintiff and the defendant clearly indicate that the parties had entered into a “Leave and Licence” agreement and the licensor is the absolute owner. It is worthy to mention here that the facts with regard to the stand put forth in the plaint and the stance taken in the written statement may not be stated in detail, because the real fulcrum of the lis is whether the parties had entered into a lawful compromise and whether the learned trial Judge had followed the mandate as postulated under Order XXIII Rule 3 of the CPC.
6. Suffice it to state that during the pendency of the suit at the intervention of the elders both the parties, as alleged, entered into a compromise. As noted by the trial court as well as by the appellate court, the parties entered into a settlement which were reflectible from Exts. A-8, A-9 and A-14. I.A. No. 966 of 2001 was filed before the learned trial Judge for recording the compromise and passing a decree in terms of the settlement. It was urged before the trial court that as the defendant had disputed the compromise, it was imperative to conduct an enquiry. For the said purpose I.A. No. 490 of 2002 was filed by the plaintiff. The said application was resisted by the defendant on many a ground. The learned trial Judge rejected the said application solely on the base that the plaintiff had not carried out the amendments in the plaint by complying with the order passed in I.A. No. 1015 of 1998 for amendment and hence, his claim for getting an enquiry done was not maintainable.
7. After completion of due formalities the suit was takenup and evidence was adduced. The learned trial Judge, at that juncture, adverted to the oral and documentary evidence brought on record, including Exts. A-8 and A-9. The learned trial Judge, relying on the letters exchanged between the parties, namely, Exts. A-15, A-16 and A-25 and discussing the contents of the letters in extenso, came to hold that the compromise deeds Ext. A-8, A-9 and A-14 had been acted upon with the understanding between plaintiff and defendant No.4 because the defendant No. 4 had sold away the portions of the land to different persons under sale deeds, Exts. B-3, B-12 and B-22, which apparently took place subsequent to Ext. A-8 and A-9 and A-14. The trial court further held that had there been no compromise between the plaintiff and the defendant No. 4, there could have been any scope entitling the defendant No. 4 to sell portions of the land to the third parties under Exts. B-3, B-8, B-12 and B-22 during the pendency of the suit. The court also
