Gujarat High Court
Mooman Jafferali Aliji Maknojiya vs Shia Imami Ismaili Momin Jamat Samaj on 5 October, 2021
Equivalent citations: AIRONLINE 2021 GUJ 2027
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/CA/1345/2020 ORDER DATED: 05/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1345 of 2020
In F/FIRST APPEAL NO. 29656 of 2019
With
R/CIVIL APPLICATION NO. 1348 of 2020
In F/FIRST APPEAL NO. 29651 of 2019
With
R/CIVIL APPLICATION NO. 1346 of 2020
In In F/FIRST APPEAL NO. 29854 of 2019
With
R/CIVIL APPLICATION NO. 1347 of 2020
In In F/FIRST APPEAL NO. 29857 of 2019
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MOOMAN JAFFERALI ALIJI MAKNOJIYA
Versus
SHIA IMAMI ISMAILI MOMIN JAMAT SAMAJ
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Appearance:
MR ANMOL A MEHTA(8390) for the Applicant(s) No. 1,2,3,4
MR AS VAKIL(962) for the respondent(s) No. 5,6,7,8
MR DHAVAL D VYAS(3225) for the respondent(s) No. 3.1,3.2,3.3
MR B.S.PATEL, SR.ADVOCATE with MR AMIT R JOSHI, ADVOCATE for the
respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 05/10/2021
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. The present Civil Applications have been filed seeking leave to prefer Appeals under Section 96 of the Code of Civil Procedure.
2. The applicants-appellants have filed the present Appeals seeking to challenge the two consent decrees dated 15 th March 2016 and 17th December 2016 respectively drawn by the Page 1 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 Principal Senior Civil Judge, Patan, in the Special Civil Suit No.6 of 2016 and Special Civil Suit No.19 of 2016 respectively. Indisputably, the applicants herein were not the parties to the suit proceedings.
LAW GOVERNING THE GRANT OF LEAVE TO APPEAL :
3. Sections 96 and 100 respectively of the Code of Civil Procedure provide for preferring an appeal from any original decree or from decree in appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. However, it is a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the court that he falls with the category of aggrieved persons. It is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the appellate court. [see Sri V.N.Krishna Murthy and another vs. Sri Ravikumar and others (Civil Appeal Nos.2701-2704 of 2020, decided on 21st August 2020)]
4. We may also refer to the observations of the Supreme Court in the case of Smt.Jatan Kumar Golcha vs. Golcha Properties Private Limited, reported in (1970) 3 SCC 573. The same reads thus :
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be Page 2 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 prejudicially affected by the Judgment."
5. The Supreme Court, in the case of State of Punjab and others vs. Amar Singh and another, reported in (1974) 2 SCC 70, while dealing with the maintainability of appeal by a person who is not party to a suit, has observed thus :
"Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it."
6. In the case of Baldev Singh vs. Surinder Mohan Sharma and others, reported in (2003) 1 SCC 34, the Supreme Court held that an appeal under Section 96 of the Civil Procedure Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under :
"A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned."
7. In the aforesaid judgment, a compromise decree was passed in a suit between husband and wife to the effect that their marriage stood dissolved from an earlier date by virtue of a Page 3 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 memorandum of customary dissolution of marriage. The said decree was sought to be challenged by a person who was having a property dispute with the husband and who had filed complaints against the husband to the employer of the husband, in contravention of the Employment Rules having contracted a second marriage. The Supreme Court, while holding that the person who was seeking to challenge the decree had no locus standi to do so, held: (a) that there is no dispute that as against the decree, an appeal would be maintainable in terms of Section 96 of the CPC; such an appeal, however would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree; (b) that the dispute between the said person and the husband was in relation to a property and the said person, save for making complaints to the employer of the husband, had nothing to do with the marital status of the husband; (c) locus of a person to prefer an appeal in a matter of this nature is vital; (d) the court cannot enlarge the scope of locus, where the parties are fighting litigations; (e) the pleas of the said person did not disclose as to how and in what manner he would be prejudiced if the compromise decree was allowed to stand; (f) that the challenge by the said person was not bona fide; and, (g) even if the compromise decree was a judgment in rem, the said person could not have challenged the same as he was not aggrieved therefrom.
8. In the case of A.Subash Babu vs. State of A.P. and another, reported in (2011) 7 SCC 616, the Supreme Court held as under:
"The expression 'aggrieved person' denotes an elastic and an elusive concept. It cannot be confined that the bounds of Page 4 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant's interest and the nature and extent of the prejudice or injuries suffered by him."
9. The expression 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized (vide Shanti Kumar R. Canji vs. Home Insurance Co. of New York, (1974) 2 SCC 387 and State of Rajasthan & Ors. vs. Union of India & Ors., (1977) 3 SCC 592).
10. We may also refer to a Division Bench decision of the Madras High Court in the case of Srimathi K.Ponnalagu Ammani vs. The State of Madras represented by the Secretary to the Revenue Department, Madras and Ors., reported in AIR 1953 Madras 485. The High Court laid down the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in following words :
"Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that Page 5 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."
11. We may look into the decision in the case of Province of Bombay vs. W.I. Automobile Association, reported in AIR 1949 Bombay 141, and the English practice on which that decision is based. In the Bombay case Chagla C. J. and Bhagwati J. held that a person not a party to a suit may prefer an appeal if he is affected by the order of the trial Court provided he obtained leave from the Court of appeal. The learned Chief Justice observed, as follows:
"The Civil Procedure Code does not in terms lay down as to who can be a party to an appeal. But it is clear and this fact arises from the very basis of appeals, that only a party against whom a decision is given has a right to prefer an appeal. Even in England the position is the same. But it is recognised that a person who is not a party to the suit may prefer an appeal if he is affected by the order of the trial Court, provided he obtains leave from the Court of appeal; therefore-whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the court of appeal may in its discretion allow him to prefer an appeal."
12. Bhagwati J. referred to the decision of the High Court in 'AIR 1934 Mad 360' (L) and accepted it as authority for the Page 6 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 position that no person who is not a party to a suit or proceeding has a right of appeal. But if he was aggrieved by a decision of the court the remedy open to him was to approach the appellate court and ask for leave to appeal which the appellate court would grant in proper cases. The learned Judge cites a passage from the decision in 'In re Securities Insurance Co.', (1894) 2 Ch D 410 (P), where Lindley L.J. said that the practice of the Courts of Chancery, both before and after 1862, was well-settled that while a person who was a party could appear without any leave a person who without being a party was either bound by the order or was aggrieved by it or was prejudicially affected by it could not appeal without leave.
13. In re Markham Markham vs. Markham, (1881) 16 Ch D 1 (Q); 'In re Padstow Total Loss and Collision Assurance Association', (1882) 20 Ch. D 137 at p. 142 (R); 'Attorney General vs. Marquis of Ailesbury', (1885) 16 Q B D 408 at p. 412 and 'In re Ex Tsar of Bulgaria'. (1921) 1 Ch D 107 at p. 110 (T), the law has been succinctly explained as regards the grant of leave to appeal. The position is thus stated in the Annual Practice for 1951 at page 1244:
"Persons not parties on the record may, by leave obtained on an 'ex parte' application to the Court of appeal, appeal from a judgment or order affecting their interests, as under
the old practice."
14. Halsbury's Laws of England, Vol. 26, page 115, gives the same rule in a different form:
Page 7 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 "A person who is not a party and who has not been served with such notice (notice of the judgment or order) cannot appeal without leave, but a person who might properly have been a party may obtain leave to appeal."
15. In more or less similar terms, the rule and its limits are stated in Seton on Judgments and Orders, 7tb Edn., Vol. 1, at p. 824 :
"Where the appellant is not a party to the record he can only appeal by leave to be obtained on motion 'ex parte' from the Court of Appeal..... Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party."
16. The principles governing grant of leave to appeal may be summarised as under :
(i) Sections 96 and 100 of the CPC provide for preferring an appeal from an original decree or decree in appeal respectively;
(ii) the said provisions do not enumerate the categories of persons who can file an appeal;
(iii) however it a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls within the category of aggrieved person;Page 8 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022
C/CA/1345/2020 ORDER DATED: 05/10/2021
(iv) it is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the Court;
(v) a person aggrieved, to file an appeal, must be one whose right is affected by reason of the judgment and decree sought to be impugned;
(vi) the expression person aggrieved does not include a person who suffers from a psychological or an imaginary injury;
(vii) it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment; and
(viii) ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.
17. Thus, a mere saying that the appellants are prejudicially affected by the consent decrees is not sufficient. It has to be demonstrated that the two consent decrees affect the legal rights of the appellants and would have adverse effect when carried out. It has been vehemently contended before us that the two impugned consent decrees affect the appellants adversely. The appellants have placed materials to demonstrate as to how the Page 9 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 two consent decrees passed by the trial court adversely or prejudicially affect them.
18. We now proceed to consider the materials on record and the case put up by the applicants for the purpose of seeking leave to appeal.
19. It is the case of the applicants that they had purchased part of the suit land admeasuring 3272 sq.meters, 6385 sq.meters and 6567 sq.meters by registered sale deeds dated 10 th August 2015 and 12th August 2015 respectively executed by the present opponent no.5 - Sakina Sultanali Sunesara.
20. It is also the case of the applicants that the present respondent No.1 - Jamat, the respondent No.2 - Trust, the respondent No.3 - Shaukat (now through his legal representatives) along with one Sadrubhai and Valibhai alongwith two advocates, namely Shri Pankajkumar Bachubhai Velani and Ms.Rekhaben J.Vania conspired and practiced fraud upon the present appellant - Platinum Tradex Pvt. Limited (purchaser under the sale deed dated 10.8.2015), the four purchasers of the sale deed dated 12.08.2015, upon the respondent Nos. 5 to 8 respectively and also upon the trial court. It is alleged that they all acted collusively. The first consent decree dated 15.03.2016 and the second consent decree dated 17.12.2016 are grossly fraudulent.
21. The following list of dates and events have been brought to our notice :
Page 10 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 (a) The land bearing C.T.S.No. 322 (Survey No.93/1), C.T.S.
No.321 (Survey No.96/1) and C.T.S.No.323 (Survey No.94) situated at Taluka : Post Siddhpur, District : Patan (originally District: Mehsana), admeasuring 36,354 sq. meters ("the total land") was originally of the ownership of Moosabhai Mooman. The said Moosabhai Mooman passed away, leaving behind him his widow Noorbanu, sons Sultan and Shaukatali (respondent No. 3) and daughter Mumtaz (respondent No. 8). Thereafter, the son Sultan passed away leaving behind him, his widow Sakina (respondent No.5), his daughter Salma (respondent No.7) and son Altaf (respondent No.6). Thus, the total land came to the ownership of Noorbanu, Shaukat, Mumtaz, Sakina, Salma and Altaf respectively.
(b) On 15th February 2002, the respondent No.8 Mumtaz, as one of the co-owners of the total land executed an irrevocable general power of attorney in favour of the respondent No.4 - Hassanali. The said power of attorney was executed in Karachi, Pakistan, and is not even properly stamped in India.
(c) On 8th February 2005, the respondent No.5-Sakina, respondent No.7 - Salma, respondent No.6 - Altaf and Noorbanoo, as owners of the total land, executed an irrevocable general power of attorney also in favour of the present respondent No.4 - Hassanali.
(d) In the month of October 2006, Noorbanoo passed away. On her passing away, the respondent Nos.5 to 8 (Sakina, Salma, Page 11 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 Altaf and Mumtaz) and the respondent No.3 - Shaukat became the co-owners of the total land.
(e) On 9th March 2007, an agreement to sell ("the Suit Agreement") was executed by the present respondent No.3 - Shaukat and respondent No.4 - Hassanali, (acting as the power of attorney of the respondent Nos. 5 to 8) in favour of the present respondent No.1 - Shia Imami Jamat, which was signed by ten persons, namely :
(i) Mukhi Saheb Sadrubhai Miyaji Maredia
(ii) Kamdia Saheb Liyakatali Raje Mankanojia
(iii) Nazarali Vali Umtiya (since passed away)
(iv) Valibhai Memonji Karo Valibhai
(v) Kasambhai Muhammad Maknojia (since passed away)
(vi) Jaffer Aliji Dadu
(vii) Kurbanbhai Valibhai Maredia
(viii) Rahimbhai Dosan Maredia (since passed away)
(ix) Akbarbhai Muhammad Sunesara
(x) Mahdibhai Nurmuhammad Maknojia
(f) All the aforesaid ten persons were stated to be residing at the Siddhpur. As per the said agreement to sell dated 09.03.2007, the total consideration is Rs.2.51 crore and the area was 28,978.51 sq.meters ("the suit land"). The purchaser - respondent No.1 - Shia Imami Jamat (through the ten persons) paid a sum of Rs.15 lakh on 09.03.2007, whereas the balance consideration was payable as under:
Page 12 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021
(i) 10.04.2007 (Rs.10 lakh)
(ii) 10.08.2007 (Rs.25 lakh)
(iii) 10.01.2008 (Rs.50 lakh)
(iv) 10.04.2008 (Rs.50 lakh)
(v) 10.08.2008 (Rs.50 lakh)
(vi) 10.10.2008 (Rs.51 lakh)
(g) At the time of execution of the agreement to sell dated 09.03.2007, the same was not disclosed by the respondent no.4 (power of attorney) to the respondent Nos.5 to 8 (i.e. Sakina, Salma, Altaf and Mumtaz) herein. The said sum of Rs.15 Lakh as recorded to have been paid under the agreement to sell dated 09.03.2007 was not received by any of the respondent Nos.5 to 8 respectively.
(h) On 3rd August 2011, a notice is stated to have been issued by an advocate representing the (power of attorney) respondent No.4 - Hassanali, to the respondent No.1 - Shia Imami Jamat stating that on account of non-receipt of payment under the agreement to sell dated 09.03.2007, the said agreement to sell dated 09.03.2007 stood cancelled and terminated. The reference to such notice is set out in the cancellation deed dated 10.01.2013.
(i) In the month of October/November 2012, each of the respondent Nos.6, 7 and 8 (Salma, Altaf and Mumtaz) executed a separate power of attorney in favour of the respondent No.5 - Sakina.
Page 13 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 (j) In the meanwhile, two out of the aforesid ten persons, i.e.
Nazarali Valibhai Umtiya and Rahimbhai Dosan Maredia, passed away in the year 2007 and 2013 respectively.
(k) On 10th January 2013, a Cancellation Deed came to be executed by the present respondent No.1 - Shia Imami Jamat through the remaining eight surviving persons, cancelling the agreement to sell dated 09.03.2007. The said Cancellation Deed dated 10.1.2013 records the time schedule according to which the payments were to be made as per the agreement to sell dated 09.03.2007. It further records that the respondent No.1 - Shia Imami Jamat had failed to abide by the time schedule of payment and had thereby failed to make the payment except the initial payment of Rs.15 lakh; that the respondent No.1 - Shia Imami Jamat had failed to act in accordance with the terms of the agreement to sell dated 09.03.2007. The said Cancellation Deed dated 10.1.2013 also refers to the notice dated 03.08.2011 issued by the advocate cancelling the agreement to sell dated 09.03.2007, and accordingly, proceeded to cancel the agreement to sell dated 09.03.2007. It confirmed that nothing further remained to be done under the agreement to sell dated 09.03.2007 and that the said ten persons have not transferred any of their rights under the agreement to sell dated 09.03.2007 to any third party, either orally or in writing, etc.
(l) On the same day, i.e. on 10.1.2013, the respondent No.1 - Shia Imami Jamat, through the remaining eight surviving persons, also executed a separate affidavit-cum-indemnity bond which, in substance, reiterated the contents of the Cancellation Deed dated 10.01.2013.
Page 14 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 (m) By this period of time, the respondent Nos.5 to 8 (Sakina,
Salma, Altaf and Mumtaz) orally revoked the power of attorney dated 08.02.2005 as well as the power of attorney dated 15.02.2002 and thereby demanded that the same be returned along with the original agreement to sell dated 09.03.2007. Thereafter, even as on date, the original copies of both the powers of attorney dated 08.02.2005 and 15.02.2002 respectively, the agreement to sell dated 09.03.2007 and the Cancellation Deed dated 10.01.2013 as also the affidavit-cum- indemnity bond dated 10.01.2013 are in possession and in custody of the respondent No.5 - Sakina.
(n) In the mean time, the respondent No.6 - Salma, the respondent No.7 - Altaf, the respondent No.8 - Mumtaz and the respondent No. 3 - Shaukat had given up their respective share in the suit land/total land in favour of the respondent No.5 - Sakina. Thus, the respondent No.5 - Sakina became the sole owner of the land.
(o) The aforesaid is reflected in the revenue records vide the following separate mutation entries :
i. Mutation entry No.11415 dated 31.05.2013 in respect of deletion of the name of the respondent No. 6 - Altaf. ii. Mutation entry No.11416 dated 31.05.2013 in respect of deletion of the name of the respondent No.8 - Mumtaz. iii. Mutation entry No.11417 dated 31.05.2013 in respect of deletion of the name of the respondent No.3 - Shaukat. iv. Mutation entry No.11418 dated 31.05.2013 in respect of deletion of the name of the respondent No.7 - Salma.Page 15 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022
C/CA/1345/2020 ORDER DATED: 05/10/2021 Thus, from around 31.05.2013, the name of the respondent No.5
- Sakina only appeared in the revenue records in so far as the suit land/total land is concerned.
(p) On 10th August 2015, a sale deed came to be executed by the respondent No.5 - Sakina herself in respect of part of the suit land admeasuring 3,272 sq.meters in favour of the present applicant/appellant - Platinum Tradex Pvt. Ltd. The same is duly registered in accordance with the provisions of the Registration Act, 1908, under No.SDP-1916-2015.
(q) On the same day, i.e. on 10.8.2015, one another sale deed came to be executed by the respondent No.5 - Sakina herself in respect of part of the suit land admeasuring 6,385 sq.meters in favour of the present appellant-Platinum Tradex Pvt. Ltd. The same is duly registered in accordance with the provisions of the Registration Act, 1908, under No.SDP-1917-2015.
Thus, 9,657 sq.meters of land was sold to the present applicant/ appellant- Platinum Tradex Pvt. Ltd.
(r) On 12th August 2015, third sale deed came to be executed by the respondent No.5 - Sakina herself in respect of part of the suit land admeasuring 6,567 sq.meters of land in favour of: (i) Karimbhai (ii) Jafferali, (iii) Abdulbhai, and (iv) Akbarbhai. ("four purchasers of sale deed dated 12.08.2015"). The said Jafferali and Akbarbhai are in fact two out of the ten persons who represented the respondent No.1 - Shia Imami Jamat and had also signed the agreement to sell dated 09.03.2007, the Page 16 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 cancellation deed dated 10.01.2013, etc. The said sale deed dated 12.8.2015 is duly registered in accordance with the provisions of the Registration Act, 1908, under No.SDP-1931- 2015.
(s) On the basis of the aforesaid three sale deeds dated 10.08.2015, 10.08.2015 and 12.08.2015, entries came to be mutated in the revenue records in the name of the purchasers of the respective sale deeds, i.e. applicants/appellants herein.
(t) In the month of October-December 2015, the power of attorney, the respondent No.4 - Hassanali along with Sadrubhai Miyaji Maredia ("Sadrubhai") and Valibhai Memanji Karovadia ("Valibhai"), i.e. two out of the ten individuals who had signed the agreement to sell dated 09.03.2007 as well as the Cancellation Deed dated 10.01.2013 as also the affidavit-cum- indemnity bond dated 10.01.2013, are stated to have approached Kurban Valibhai Momin (Maredia) ("Kurban") who was also one of the ten signatories to the agreement to sell dated 09.03.2007 and are alleged to have fraudulently enticed Kurban to initiate proceedings, based on the cancelled agreement to sell dated 09.03.2007 including a Civil Suit for specific performance of the said agreement to sell dated 09.03.2007 before the Civil Court at Patan.
RTS Proceedings (with respect to the sale deeds of the applicants/appellants) :
22. On 24th November 2015, Sadrubhai and Kurban, i.e. the two signatories to the agreement to sell dated 09.03.2007, filed Page 17 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 three separate appeals, viz. R.T.S./Case No.2 of 2016, Case No.3 of 2016 and Case No.9 of 2016 ("RTS proceedings") under rule 108(5) of the Gujarat Land Revenue Rules, before the Deputy Collector, Siddhpur, challenging the three mutation entries based upon the two sale deeds dated 10.08.2015 in favour of the present appellant - Platinum Tradex Pvt. Ltd. and one sale deed dated 12.08.2015 in favour of the four purchasers. In so far as the present appellant-Platinum Tradex Pvt. Ltd. is concerned, their mutation entry Nos.2925 and 2926 was subject matter of challenge in the RTS Appeal Nos.2 and 3 of 2016.
23. On 15th December 2016, the present appellant-Platinum Tradex Pvt. Ltd. filed its reply dated 15.12.2016 in the said RTS Appeal Nos. 2 and 3 of 2016.
24. The present respondent No.4 - Hassanali (power of attorney holder) is also a party respondent to the three RTS proceedings.
The respondent No.5 - Sakina and the respondent No.3 - Shaukat are also the respondents in the three RTS proceedings pertaining to the three mutation entries based upon the three sale deeds. However, the respondent Nos.6, 7 and 8 (Salma, Altaf and Mumtaz) are not made the parties to the three RTS proceedings, thereby accepting the acknowledgment that the said respondent Nos.6, 7 and 8 had given up their share in the suit land in favour of the respondent No.5 - Sakina. The said Sadrubhai and Kurban (two out of the ten signatories to the agreement to sell) who had filed the three RTS proceedings were, thus, aware that the respondent Nos.6, 7 and 8 (Salma, Altaf and Mumtaz) and that the respondent No.3 - Shaukat had already released their shares in favour of the respondent No.5 -
Page 18 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 Sakina. The said Sadrubhai and Kurban had not challenged the mutation entries whereby the said relinquishment by the respondent Nos.6, 7 and 8 and the respondent No.3 - Shaukat were recorded in the revenue records/record of rights. Thus, Sadru and Kurban accepted and had acknowledged that the respondent No.5 - Sakina was the sole owner of the total land/suit land prior to the execution of the two sale deeds dated 10.8.2015 in favor of the present appellant-Platinum Tradex Pvt. Ltd. and one in favour of the four purchasers vide sale deed dated 12.08.2015.
Siddhpur Suit (Regular Civil Suit No.5 of 2016) :
25. On 5th January 2016, one Kasambhai Rajebhai Momin, claiming himself to be a social worker and a resident of Siddhpur filed the alleged collusive Regular Civil Suit No.5 of 2016 in the Court of the Principal Senior Civil Judge, Siddhpur against Sadrubhai, Valibhai and Kurban, i.e. the three out of the ten purchasers -signatories under the cancelled agreement to sell dated 09.03.2007, for a declaration that the possession of the suit land (28978.51 sq.meters), which is the subject matter of the agreement to sell dated 09.03.2007, is with the present respondent No.1 - Shia Imami Jamat (though without making respondent No.1 - Shia Imami Jamat a party defendant to the said Siddhpur Suit) and for a permanent injunction restraining the said three defendants of the Siddhpur Suit from disturbing the possession of respondent No.1 - Shia Imami Jamat. Thus, the purported entity whose alleged possession was sought to be protected was not even a party to the Siddhpur Suit.Page 19 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022
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26. The aforesaid Siddhpur Suit came to be transferred from the court of the Principal Senior Civil Judge to the court of the Additional Civil Judge, Siddhpur.
27. On the same day, i.e. 05.01.2016, the Siddhpur Court passed an order appointing a Court Commissioner to carry out the local inspection and to draw a map of the suit property. The Court Commissioner gave a notice on 06.01.2016 and the commission work was carried out on 07.01.2016 in presence of the plaintiff and two out of the three defendants of the Regular Civil Suit No.5 of 2016. It is the case of the appellant-Platinum Tradex Pvt. Ltd. that it has come to know that the entire purported inspection was stage managed by misleading the Court Commissioner.
28. It is the case of the appellant - Platinum Tradex Pvt. Ltd.
that the present respondent nos.5 to 8 (Sakina, Salma, Altaf and Mumtaz) jointly along with it and the four purchasers under the sale deeds dated 12.08.2015 respectively, continue to be in the uninterrupted possession of the entire suit property/land.
The First Patan Suit/the Specific Performance Suit (Special Civil Suit No.6 of 2016): The first impugned consent decree :
29. On 21st January 2016, the plaint of the Special Civil Suit No.6 of 2016 (i.e. First Patan Suit) came to be affirmed before a Notary (i.e. Ms.Vania), the respondent No.1 - Shia Imami Jamat, i.e. the plaintiff no.1, was represented only through one of the said ten persons, i.e. Kurban. It may be noted that the advocate Page 20 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 for the plaintiffs is the same, i.e. Shri Velani, who is also the advocate for the plaintiff of the Siddhpur Suit. The present respondent No.2 - Trust, though not a party to the agreement to sell dated 09.03.2007, yet is the plaintiff no.2 in the First Patan Suit.
30. The present four applicants/appellants are not made parties to the First Patan Suit.
31. On 22nd January 2016, the First Patan Suit came to be filed before the trial court for specific performance of the cancelled agreement to sell dated 09.03.2007 and for a permanent injunction. Along with the First Patan Suit, a separate application was filed for temporary injunction.
32. As per the Rojkam dated 22.01.2016 of the First Patan Suit, summons came to be issued on 22.01.2016 and it was made returnable on 30.01.2016.
33. On 24th January 2016, i.e. within 1-2 days of the First Patan Suit, the present respondent No.4 - Hassanali (falsely as the power of attorney of the respondent Nos.5 to 8) affirmed an affidavit-in-reply to the plaint as well as the application for temporary injunction of the First Patan Suit and practically proceeded to admit the First Patan Suit and agreed that a sale deed be executed in favour of the present respondent No.1 - Shia Imami Jamat and the respondent No. 2 - Trust. The said affidavit-in-reply was affirmed before the same Notary, i.e. Ms.Vania, before whom the plaint of the First Patan Suit was Page 21 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 affirmed. It appears from the Rojkam that the First Patan Suit was adjourned to 16.02.2016.
Agreement in First Patan Suit:
34. On 12th March 2016, an agreement/karardad was executed between the respondent No.1 - Shia Imami Jamat and the respondent No.2 - Trust on the one hand and the present respondent No.3 - Shaukat and the respondent No.4 - Hassanali (acting as a power of attorney of the respondent Nos.5 to 8 Sakina, Salma, Altaf and Mumtaz) on the other hand, in respect of the First Patan Suit.
35. As per the Rojkam, the First Patan Suit was placed before the Lok Adalat, wherein the respondent No.1 - Shia Imami Jamat and the respondent No.2 - Trust, the respondent No.3 -
Shaukat, the respondent No.4 - Hassanali (described as the power of attorney of the the respondent Nos.5 to 8) and the advocate for the parties were present at the Lok Adalat. Vide a compromise purshis, the karardad/agreement dated 12.03.2016 was produced before the Lok Adalat.
36. On 15th March 2016, as per the Rojkam of the First Patan Suit, the advocate Shri Velani for the plaintiffs/respondent No.1
- Shia Imami Jamat and the respondent No.2 - Trust were present, and on the basis of the compromise purshis/karardad/ agreement dated 12.03.2016, the trial court passed an order in the First Patan Suit under Order 23 Rule 3 of the CPC, and on the basis thereof, the impugned consent decree was passed.
Page 22 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 Withdrawal of the Siddhpur Suit :
37. On 23rd April 2016, a withdrawal purshis was filed in the Siddhpur Suit stating that the dispute between the plaintiff of the Siddhpur Suit, i.e. the so-called social worker, and the defendants of the Siddhpur Suit was resolved and the Siddhpur Suit was permitted to be withdrawn unconditionally.
Second Patan Suit (Special Civil Suit No.19 of 2016) : Second impugned consent decree :
38. On 25th April 2016, the present respondent No.1 - Shia Imami Jamat alone filed the Special Civil Suit No.19 of 2016 (i.e. the Second Patan Suit) before the trial court against the present respondent No.2 - Trust, respondent No.3 - Shaukat and the respondent Nos.5 to 8 (who were again sued through the respondent No.4 - Hassanali as the power of attorney of the respondent Nos.5 to 8) for a declaration that the suit land admeasuring 28978.51 sq.meters had been purchased by the respondent No.1 - Shia Imami Jamat, i.e. plaintiff, from the respondent Nos.5 to 8 and the respondent No.3 - Shaukat; and that the respondent No.2 is a Trust of the respondent No.1 - Shia Imami Jamat, for a division of the suit land, for a permanent injunction for restraining the respondent Nos.5 to 8, and the present respondent No.3 - Shaukat from transferring, alienating the same and for a declaration that the suit land, which is the subject matter of the agreement to sell dated 09.03.2007, is in the possession of the respondent No.1 - Shia Page 23 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 Imami Jamat and is of the ownership of the respondent No.1 - Shia Imami Jamat and also of the respondent No.2 for a declaration that the suit land has been purchased by the respondent No.1 - Shia Imami Jamat pursuant to the agreement to sell dated 09.03.2007 from the respondent Nos.5 to 8 and the respondent No.3 - Shaukat, etc.
39. The said Shri Velani is the advocate for the present respondent No.1 - Shia Imami Jamat (i.e. the plaintiff of the Second Patan Suit).
40. On 13th October 2016, after the notice, the said Ms.Vania who was the advocate for the defendants in the Siddhpur Suit and had acted as a Notary for attestation of the plaint as well as the reply in the First Patan Suit filed her Vakalatnama for all the defendants of the Second Patan Suit (the respondent Nos.5 to 8 through their power of attorney, i.e. present respondent No.4 - Hassanali).
41. On 12th November 2016, an agreement/karardad came to be executed between the present respondent No.1 - Shia Imami Jamat on the one hand and the present respondent No.2 - Trust, the respondent Nos.5 to 8 (through their power of attorney, respondent No.4 - Hassanali) and the respondent No.3 - Shaukat on the other hand. As per the said agreement/ karardad :
(i) the present respondent No.4 - Hassanali is stated to be the legal power of attorney of the the respondent Nos.5 to 8;Page 24 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022
C/CA/1345/2020 ORDER DATED: 05/10/2021
(ii) the Second Patan Suit and the documents produced therewith are admitted;
(iii) the reference is made to the First Patan Suit;
(iv) the settlement/karardad entered into in the First Patan Suit;
(v) it is stated that the dispute arose between the plaintiff-
respondent No.1 - Shia Imami Jamat and the defendant no.1- respondent No.2 - Trust in the matter of division/distribution of the suit land, that a settlement was arrived at in that behalf between the parties pursuant to which the respondent No.2 - Trust is agreed to be treated as the owner of the suit land;
(vi) the suit land is stated to be admeasuring 28,978.51 sq.mtrs.,
(vii) the full consideration has been paid to the respondent Nos.5 to 8 and the respondent No.3 - Shaukat and that pursuant to the said agreement/karardad all the disputes have been resolved pursuant to which the respondent No.2
- Trust can have its name mutated in the revenue records, city survey records, nagarpalika records, sub-registrar record, etc.
42. On 3rd December 2016, Shri Velani, the advocate for the respondent No.1 - Shia Imami Jamat, filed a list of documents Page 25 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 dated 03.12.2016. On 17th December 2016, the agreement/ karardad dated 12.11.2016 was presented before the Lok Adalat and the parties along with their advocates is stated to have remained present.
The Second Impugned consent decree passed in the Second Patan Suit:
43. On 17th December 2016, on the basis of the agreement/karardad dated 12.11.2016, the trial court proceeded to pass the impugned consent decree. The said impugned consent decree states that:
(a) only on executing the sale deed on proper stamp paper and registering the same, the present respondent No.2 - Trust shall become the owner of the suit property;
(b) that if for purchasing the suit property the present respondent No.2 - Trust has to take any permission than the same shall have to be done and if the same is not obtained, the ownership of the suit property shall not be transferred;
(c) that the Court has not examined the legality and/or validity of the power of attorney supposed to have been given by the respondent Nos.5 to 8 in favour of the present respondent No.4 - Hassanali etc.,
44. The respondent No.2 - Trust, however, proceeded to get 'the impugned consent decree' itself registered with the Sub-
Page 26 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 Registrar, Siddhpur, on 21.01.2017 by affixing/typing the same on a stamp of Rs.100/-. There is no execution and/or registration of any sale deed so far. No permissions were obtained by the respondent No.2 - Trust as contemplated under the second impugned consent decree passed in the Second Patan Suit.
45. On or around 20.12.2016, Kurban who represents the respondent No.1 - Shia Imami Jamat (i.e. the plaintiff) and is one of the appellants in the RTS proceedings (challenging the mutation entries of the third party - present appellant) and one of the defendants in the Siddhpur Suit, approached the respondent No.5 - Sakina and disclosed all the aforesaid facts pertaining to the Siddhpur Suit and the First Patan Suit. However, Kurban did not disclose any facts pertaining to the Second Patan Suit, however, disclosed how Kurban was enticed by Sadrubhai, Valibhai and Hassanali to file and participate in the proceedings. Consequently, the respondent Nos.5 to 8 learnt about the Siddhpur Suit, the First Patan Suit, etc. and, in turn, informed the present appellant-Platinum Tradex Pvt. Ltd. and the four purchasers of the sale deed dated 12.8.2015 and also further described the manner in which the entire scheme of collusive litigation were stage-managed by Sadrubhai, Valibhai and Hassanali with the support of the concerned advocates and how they have obtained the impugned consent decree dated 15.03.2016 in the First Patan Suit. On 29 th December 2016, the said Kurban made a notarized declaration to the aforesaid effect.
46. On the basis of the aforesaid revelations and declaration dated 29.12.2016 by Kurban, the present respondent No.5 -
Page 27 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022C/CA/1345/2020 ORDER DATED: 05/10/2021 Sakina, through her advocate, applied for the certified copy of the record of the First Patan Suit and the Siddhpur Suit. It may be noted that at this point of time, the present appellant- Platinum Tradex Pvt. Ltd. had no knowledge about the Second Patan Suit much less the impugned consent decree dated 17.12.2016 passed in the Second Patan Suit.
47. On 30th December 2016, Kurban, i.e. one of the ten signatories to the agreement to sell, proceeded to file an application/purshis in the three RTS proceedings before the Deputy Collector seeking to withdraw himself as the appellant therefrom.
48. On 31st December 2016, the certified copy of the record of the First Patan Suit was received by the respondent Nos. 5 to 8 who, in turn, provided the same to the present appellant- Platinum Tradex Pvt. Ltd./four purchasers of the sale deed dated 12.8.2015.
49. Similarly, the present appellant-Platinum Tradex Pvt. Ltd. also received the certified copy of the Siddhpur Suit from the respondent Nos.5 to 8.
Appeal from Order No.19 of 2017 by the Appellant - Platinum Tradex Pvt. Ltd.
50. On 17th January 2017, the appellant-Platinum Tradex Pvt. Ltd. filed the Appeal from Order No.19 of 2017 along with the Civil Application for Leave to Appeal, Civil Application for Page 28 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 condonation of delay in filing the Appeal and the Civil Application for interim relief before this Court challenging the first consent decree dated 15.03.2016 passed by the trial court in the First Patan Suit.
51. On 18th January 2017, this Court passed an order in the Civil Application for Leave to Appeal and the Civil Application for condonation of delay, inter alia, observing that in the facts and circumstances of the case, more particularly, the consent decree dated 15.03.2016 was obtained in collusion by playing fraud, and considering Section 17 of the Limitation Act, 1963, that the period of limitation shall only begin to run from the date of knowledge of the fraud and/or collusion, the present appellant- Platinum Tradex Pvt. Ltd. was allowed to file the Appeal from Order No.19 of 2017. This Court also observed that the 'leave was granted' and that 'there was no delay in filing the present Appeal from Order No.19 of 2017 and directed the registry to notify the Appeal from Order for admission hearing along with the Civil Application for stay/interim relief on the very next day, i.e. 19.01.2017.
52. On 19th January 2017, thereafter, this Court passed a common order in the Appeal from Order No.19 of 2017 and the Civil Application for stay/interim relief, issued notice and stayed the operation, implementation and execution of the first consent decree dated 15.03.2016. Identical appeals were filed by the present respondent Nos. 5 to 8 and also by the four purchasers under the sale deed dated 12.08.2015 and similar orders were passed therein by this Court.
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53. It is alleged that on the same day, i.e. on 19.01.2017 at around 5:00 p.m., forcible attempt was made to dispossess the owners of the total land, for which a police complaint was lodged by the present appellant - Platinum Tradex Pvt. Ltd. with the Siddhpur Town Police Station.
54. It appears that on 20th January 2017, the second impugned consent decree dated 17.12.2016 passed in the Second Patan Suit, drawn on a stamp paper of Rs.100/- and certified it as the true copy by advocate Ms.Vania, prima facie, appears to have been produced for registration with the Sub- Registrar, Siddhpur.
55. On 21st January 2017, the second impugned consent decree drawn on a stamp paper of Rs.100/- and certified it as the true copy by advocate by Ms.Vania came to be registered with the office of the Sub-Registrar, Siddhpur, at the instance of the respondent No.2 - Trust represented through one K.Ladjibhai Momin.
The RTS Proceedings by Zulfikar Momin and the respondent No.2 - Samaj:
56. On 23rd February 2017, during the pendency of the RTS Cases Nos.2, 3 and 9 of 2016 filed by Sadrubhai and Kurban challenging the mutation entries with respect to the sale deeds of the third party-applicants/appellants, one Zulfikar Kasam Momin once again filed three separate RTS Cases under rule Page 30 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 108(5) of the Gujarat Land Revenue Rules before the Deputy Collector, Siddhpur, challenging the said mutation entries recording the sale deeds dated 10.08.2015 and 12.08.2015 respectively in favour of the present appellant - Platinum Tradex Pvt. Ltd. and one sale deed dated 12.08.2015 in favour of the four purchasers respectively. In the said proceedings, Shri Velani was appearing as the advocate for Zulfikar Momin and the respondent No. 2 - Samaj. The said Shri Velani filed his Vakaltnama dated 23.02.2017.
57. The Deputy Collector, Siddhpur, on the very same day, by judgement and order dated 17.07.2018, disposed of the RTS Appeals Nos. 1 and 2 of 2017 in view of the fact that the said RTS Appeals challenged the very same issue which had already been decided by judgement and order dated 30.03.2017 in the RTS Appeals Nos.2 and 3 of 2016, whereby the Deputy Collector had rejected the said RTS Appeals Nos.2 and 3 of 2016.
58. On 25th January 2017, a meeting of the respondent No.1- Shia Imami Jamat took place in the morning on 25.01.2017 at Siddhpur, wherein more than 200 members of the said Samaj remained present, including some of the Directors of the present appellant - Platinum Tradex Pvt. Ltd. as well as some of the purchasers of the sale deed dated 12.08.2015. In the said meeting, some of the members of the said Samaj, including one of the Trustees of the respondent No.2 - Trust, disclosed to the said Directors/purchasers of the sale deed dated 12.08.2015 that the respondent No.2 - Trust has recently got some documents registered with the office of the Sub-Registrar, Page 31 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 Siddhpur, in respect of the suit land, etc. However, no further details were provided by the said Trustees with regard to such registration.
59. Immediately thereafter on the same day, the respondent No.5 - Sakina was informed about the same. At the request of the present appellant-Platinum Tradex Pvt. Ltd. and four purchasers of the sale deed dated 12.08.2015, i.e. the present third party applicants-appellants, as well as on the instructions of the respondent No.5 - Sakina, searches were undertaken with the office of the Sub-Registrar, Siddhpur, and a certified copy of the registered copy of the impugned consent decree dated 17.12.2016 passed in the Second Patan Suit was applied for and obtained from the office of the Sub-Registrar, Siddhpur. On coming to know about the Second Patan Suit from the registered copy of the impugned consent decree dated 17.12.2016, an application was made on the same day to the trial court for certified copy of the record of the Second Patan Suit including the impugned consent decree dated 17.12.2016.
60. On 27th January 2017, the certified copy of record of the Second Patan Suit including the impugned consent decree dated 17.12.2016 were received from the trial court by the respondent No.5 - Sakina, who in turn, informed and supplied the copies of same to the present appellant - Platinum Tradex Pvt. Ltd./four purchasers of the sale deed dated 12.8.2015, i.e. the present third party applicants.
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61. On 1st February 2017, the present appellant-Platinum Tradex Pvt. Ltd. filed the Appeal from Order No.36 of 2017 along with the Civil Application seeking Leave to Appeal and the Civil Application for interim relief before this Court challenging the impugned consent decree dated 17.12.2016 passed by the trial Court in the Second Patan Suit.
62. On 2nd February 2017, this Court passed a common order in the Civil Application (for Leave to Appeal) No.2104 of 2017 in the Appeal from Order No.36 of 2017 and granted Leave to Appeal to the present appellant-Platinum Tradex Pvt. Ltd.
63. On 3rd February 2017, this Court passed a common order in the Appeal from Order No.36 of 2017 with the Civil Application for interim relief, issuing notice to the respondents, making it returnable on 31.03.2017 and further staying the implementation, execution and operation of the impugned consent decree dated 17.12.2016 passed by the trial Court and registered with the office of Sub-Registrar, Siddhpur, on 21.01.2017 and staying the effect of registration, etc.
64. On 30th March 2017, the Deputy Collector, vide judgement and order dated 30.03.2017, rejected the said RTS Appeals Nos.2 and 3 of 2016 of Sadrubhai. No further proceedings have been filed by the said Sadrubhai (and Kurban, as aforesaid, had already withdrawn as appellant) challenging the said judgement and order dated 30.03.2017 passed by the Deputy Collector.
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65. On 31st March 2017, the Appeal from Order No.36 of 2017 with the Civil Application for interim relief and other connected matters were adjourned at the request of the respondent Nos.1 and 2. The ad-interim relief granted vide order dated 03.02.2017 was extended.
66. On 3rd April 2017, Kurban filed an affidavit in the Appeal from Order No.36 of 2017, inter alia, stating that as the impugned consent decree dated 17.12.2016 passed in the Second Patan Suit was obtained by collusion and by playing fraud upon the trial Court, the same be considered as nonest, null and void. It was further clarified that Kurban has no objection if the impugned consent decree dated 17.12.2016 is quashed and set aside.
67. On 11th April 2017, the Appeal from Order No.36 of 2017 with the Civil Application for interim relief and other connected matters were adjourned and the ad-interim relied granted vide order dated 03.02.2017 was extended.
68. On 12th June 2017, one Karimbhai Rajebhai Momin stating to be the President of the respondent No.2 - Trust filed an affidavit-in-reply in the Appeal from Order No.36 of 2017.
69. On 14th June 2017, Zulfikar Kasam Momin claiming to be a member of the respondent No. 1 - Samaj filed the Civil Application (for directions) to remove Vakalatnama of the advocate representing Kurban in the Appeal from Order No.36 of Page 34 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 2017 and to further permit Zulfikar Kasam Momin to replace Kurban through whom the respondent No. 1 - Samaj is represented in the Appeal from Order No.36 of 2017. The said Zulfikar is not from amongst the ten signatories to the agreement to sell, cancellation deeds, etc. Prima facie, it appears that the respondent No.1 - Samaj is not a legal entity nor a registered body.
70. On 27th July 2017, the respondent No. 5 - Sakina filed a complaint before the Bar Council of Gujarat under Section 35 of the Advocates Act, 1961, against Shri Velani, Advocate and Ms.Vania, Advocate and Notary, for the alleged professional and other misconduct. The said complaints are pending.
71. On 22nd June 2017, Karimbhai Mohamed Mareida and eight others as the members of the respondent No.1 - Samaj filed the Civil Application for being impleaded as the party respondents in the Appeal from Order No.36 of 2017. No orders were passed by this Court below the said Civil Application.
Reference order:
72. On 7th December 2017, this Court passed an order in the Appeal from Order No.36 of 2017 with the Civil Application for interim relief and other connected matters, i.e. the Appeal from Orders of third parties and the Appeal from Orders of Sakina and others, directing the registry to place the matters before the Hon'ble Chief Justice for appropriate consideration to place the matters before a Larger Bench.
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73. The issues raised was whether an Appeal from Order under Order 43 of the CPC is maintainable against a consent decree or the remedy is elsewhere - for a third party and for a party to the suit.
74. On 12th February 2018, the present appellant-Platinum Tradex Pvt. Ltd. filed the Civil Application in the Appeal from Order No.36 of 2017 for bringing on record the legal representatives of the deceased respondent No.3 - Shaukat. No orders came to be passed in the Civil Application.
Hearing before the Larger bench:
75. On 24th April 2019, as per the order dated 7.12.2017 passed in the Appeal from Order No.36 of 2017 with other connected matters, the Larger Bench was constituted.
76. The Larger Bench heard all the concerned parties. The Larger Bench also extended the interim relief granted earlier from time to time. By order dated 13.06.2019, the Larger Bench reserved the matters for orders.
77. On 28th August 2019, the Larger Bench passed a judgement and order, thereby answered the questions as referred to vide order dated 07.12.2017 and referred the matters back to the appropriate bench. Paragraph 41(A) of the judgement and order dated 28.08.2019 reads as under:
"In case of a decree passed by the Trial Court on the basis of the compromise between the parties (consent decree), the Page 36 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 remedy available to the aggrieved party, who was party to the suit would be to file an application under proviso to Rule 3 of Order XXIII disputing such compromise, and the remedy available to the aggrieved party, who was not a party to the suit would be to file an appeal under Section 96 of CPC with leave of the appellate Court, or to file a review application before the Court, which passed the decree on the basis of the compromise..."
78. On 6th September 2019, a learned Single Judge of this Court disposed of all the Appeals from Order in view of the judgement of the Larger Bench dated 28.08.2019. The interim relief granted earlier was ordered to be continued till 23.09.2019 and/or till the appellants approach the competent forum.
79. On 19th September 2019, the appellant-Platinum Tradex Pvt. Ltd. filed the present First Appeal along with a separate Civil Application for Leave to Appeal, Civil Application for condonation of delay and a Civil Application for interim relief.
80. The appellant - Platinum Tradex Pvt. Ltd. also filed separate Civil Applications for condonation of delay and the Civil Application for bringing heirs of the respondent No. 3 - Shaukat who had expired pending the Appeals from Order.
81. On 20th September 2019, this Court, in the Civil Application No.3063 of 2019 (for condonation of delay) in the F/ Civil Application No.29651 of 2019 (for Leave to Appeal) and other connected matters, was pleased to issue 'Rule', making it Page 37 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022 C/CA/1345/2020 ORDER DATED: 05/10/2021 returnable on 09.10.2019 and in the meantime granted/ continued the ad-interim protection which was granted earlier.
82. On 18th February 2020, this Court was pleased to allow the Civil Application No.3 of 2019 (for condonation of delay) in the F/First Appeal No.29651 of 2019 and other connected matters and thereby condoned the delay for bringing on record the legal representatives of the respondent No.3 - Shaukat.
83. On 19th February 2020, this Court was pleased to allow the Civil Application No.2 of 2019 (for bringing heirs) in the F/First Appeal No.29651 of 2019 and other connected matters and thereby permitted the appellant-Platinum Tradex Pvt. Ltd. to bring on record the legal representatives of the respondent No.1 - Shaukat as the respondent Nos.3.1 to 3.3 in the First Appeal and all connected Civil Applications.
84. This Court was pleased to allow the Civil Application No. 3063 of 2019 (for condonation of delay) in the F/Civil Application No.29652 of 2019 (for Leave to Appeal) and other connected matters and thereby condone the delay in preferring the Civil Application for Leave to Appeal.
85. On 9th March 2020, this Court in the present Civil Application (for Leave to Appeal) and other connected matters was pleased to issue 'Rule', making it returnable on 09.04.2020 and in the meantime continued/extended the ad-interim relief granted earlier in the Civil Application No.3063 of 2019 (for condonation of delay).
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86. We have heard Mr.Anmol A.Mehta, the learned counsel appearing for the applicants, Mr.Apurva S.Vakil, the learned counsel appearing for the opponents nos.5 to 8, Mr.Dhaval D.Vyas, the learned counsel appearing for the opponents nos.3.1 to 3.3. and Mr.B.S.Patel, the learned senior counsel assisted by Mr.Amit R.Joshi, the learned advocate appearing for the opponents nos.1 and 2.
87. Having regard to the materials on record, we are of the view that the applicants have been able to make out more than a prima facie case for grant of leave to appeal. The applicants could be said to be prima facie prejudicially affected by the consent decrees. Prima facie, the applicants have been able to demonstrate that the consent decrees affect their legal rights and would have adverse effect when carried out. The applicants could be said to be falling within the ambit of the expression 'person aggrieved' entitling them to maintain appeal against the impugned consent decrees.
88. We would like to clarify that our findings are confined only to the extent of grant of leave to appeal. The final rights of the parties shall be determined upon the adjudication of the Appeals on merits.
89. Having regard to the aforesaid, all the four Civil Applications seeking Leave to Appeal succeed and are hereby allowed. Leave as prayed for is granted in all the Civil Applications.
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90. The Appeals are ordered to be admitted. The interim order earlier granted to continue in all the four Appeals till the final disposal of the Appeals.
91. The registry shall now give the regular/pucca numbers to the Appeals.
92. As requested by Mr.B.S.Patel, the learned senior counsel, who has opposed all the four Civil Applications seeking leave to appeal, we keep all questions of law open, to be agitated by the parties during the final hearing of the First Appeals.
(J. B. PARDIWALA, J.) (VAIBHAVI D. NANAVATI, J.) /MOINUDDIN Page 40 of 40 Downloaded on : Sun Jan 16 21:34:26 IST 2022