Delhi High Court
Jamia Hamdard Deemed University vs 1. Hamdard National Foundation ... on 1 October, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st October, 2020
+ RFA(OS) No.36/2020
JAMIA HAMDARD (DEEMED UNIVERSITY).... APPELLANT
Through: Mr. Talha Abdul Rahman, Mohd.
Shaz Khan & Mr. Udit Atul
Konkanthankar, Advs.
Versus
HAMDARD NATIONAL FOUNDATION
(INDIA) & ORS. ...RESPONDENTS
Through: Mr. Kailash Vasdev, Sr. Adv. with
Mr. Shreyans Singhvi, Adv. for R-
1&2.
Mr. Rajiv Nayar, Sr. Adv. with Mr.
Saket Sikri, Mr. Kartik Nayar, Mr.
Vikalp Mudgal & Mr. Kshitij Mudgal,
Advs. for R-1,3&6.
Mr. Apoorv Kurup & Ms. Nidhi
Mittal, Advs. for R-7/UGC.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
CM Nos. 24607/2020, 24611/2020 and 24612/2020 (all for exemption)
1. Allowed, subject to just exceptions and as per extant rules.
2. The applications are disposed of.
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RFA (OS) No. 36/2020, CM Nos.24604/2020 (for permission to file the
instant appeal) , 24605/2020 (for stay), 24606/2020 (for condation of 2
days delay in filing the appeal), 24608/2020 (for permission to file
additional documents), 24609/2020 (for calling for suit record) and
24610/2020 (for impleadment of University Grants Commission (UGC)
as respondent No. 7)
3. The challenge in this Regular First Appeal (RFA), is to the common
order dated 13th December, 2019 of the Single Judge of this Court, in as
many as six suits i.e. CS(OS) Nos.162/2017, 211/2017, 326/2017, 60/2018,
583/2018 and 164/2017, decreeing the suits in terms of the Deed of Family
Settlement dated 22nd October, 2019 between the family members who were
parties to the suits. Though it appears that besides family members, certain
others also were parties to the suits but the said others were not parties to the
Deed of Family Settlement dated 22nd October, 2019.
4. The challenge is made, not by any of the parties to the suits or by any
of the parties to the Deed of Family Settlement, but by a non-party i.e. Jamia
Hamdard (Deemed University) (hereinafter referred to as the appellant
University). The appeal is thus inter alia accompanied with CM
No.24604/2020 under Section 151 Code of Civil Procedure, 1908 (CPC),
seeking permission to prefer the appeal inspite of being a non-party to the
suits from which the appeal arises.
5. We have heard the counsel for the appellant without going into the
aspect of maintainability of a single appeal from the decree in as many as six
suits.
6. The Deed of Family Settlement dated 22nd October, 2019 (hereinafter
referred to as the „Family Settlement‟) in terms whereof the suits were
RFA(OS) No.36/2020 Page 2 of 13
decreed, was executed between (i) Abdul Majeed and (ii) Asad Mueed, both
sons of Late Janab Abdul Mueed Sahib, of the one part, described in the
Deed of Family Settlement dated 22nd October, 2019 as "HLT Group"; and,
(iii) Janab Hammad Ahmed Sahib and his sons (iv) Hamid Ahmed and (v)
Sajid Ahmed, on the other part and described in the Deed of Family
Settlement dated 22nd October, 2019 as "HFI Group". We will refer to both
factions collectively as „Hamdard Family‟.
7. Being of the prima facie opinion that the decree impugned being a
compromise decree and which can bind and indeed binds only the parties
thereto and is incapable of binding non-parties, we have, at the outset,
enquired from the counsel for the appellant University, how the appellant
University can be the "person aggrieved".
8. The counsel for the appellant University has drawn attention to the
application seeking leave to appeal where it is pleaded that, (a) the
Compromise Decree, particularly in terms of Clause 35 with Annexures VI
and VII thereto and Clause 36, of the Family Settlement, propose to create
obligations upon the appellant University; (b) the appellant University is a
deemed university and is governed by the University Grants Commission
(UGC) Act, 1956 and the UGC (Institutions Deemed to be Universities)
Regulations, 2019; (c) the appellant University, inspite of being a non-party
to the suits in which decree was passed, is a "person aggrieved" from the
judgment and decree because the pecuniary and property rights of the
appellant University are adversely affected by the decree; (d) the
administration of the appellant University is being adversely affected; (e) the
properties of the appellant University are proposed to be taken away from
RFA(OS) No.36/2020 Page 3 of 13
the appellant University and the appellant University from being the owner
of the said properties is sought to be made the permitted user of the said
properties; (f) the Family Settlement in terms of which decree has been
passed, seeks to create obligations on the appellant University and the said
obligations are now being forced upon the appellant University; (g) the
obligations which are being sought to be enforced against the appellant
University by the parties to the Compromise Decree, are contrary to the Act
and Regulations aforesaid; (h) Clauses 35 and 36 and Annexures VI and VII
of the Family Settlement, in terms of which the learned Single Judge has
passed the decree, are opposed to law and cannot be enforced; (i) the Family
Settlement, in terms of which the decree has been passed, treats the appellant
University as a partible asset and proposes to divide it by distributing the
Medical College and the assets of the appellant University between the two
factions of the Hamdard Family; the same is illegal and impermissible and
opposed to public policy; (j) owing to the decree, the functioning of the
appellant University and career of thousands of students enrolled in the
appellant University are at stake; (k) the members of the Hamdard Family
have not released the pending grant of Rs.48 crores and have made it
contingent upon passing unlawful resolutions; (l) vide order dated 22 nd
November, 2019 in LPA No.374/2019, it was ordered that the appellant
University shall facilitate the implementation of the Family Settlement to the
extent the same is legal and permissible in law including the Regulations
aforesaid; (m) even though the impugned judgment and decree dated 13th
December, 2019 are not binding on the appellant University, yet the
members of the Hamdard Family who have executed the Family Settlement
are arm twisting the appellant University to comply with the terms of the
RFA(OS) No.36/2020 Page 4 of 13
Family Settlement; various attempts are being made to sabotage the formal
functioning of the appellant University including by depriving it of its funds;
and, (n) hence, the appellant University is a "person aggrieved", whose
rights are adversely affected.
9. We have next, enquired from the counsel for the appellant University,
the constitution of the appellant University.
10. It is informed that though the appellant University was initially set up
by a Society registered under the Societies Registration Act, 1860, but on
being granted the status of a deemed university, now its constitution and
legal persona is as a deemed university only.
11. We have next enquired from the counsel for the appellant University,
who governs the functioning of the appellant University.
12. The counsel for the appellant University states that the appellant
University is governed by a Board of Management.
13. On further enquiry, it is informed that the Board of Management
comprises of twelve members and of whom, only four are members of the
Hamdard Family, who have entered into the Family Settlement.
14. We have next enquired, whether the said four family members are in a
position to take decisions, without consulting the other eight members of the
Board of Management.
15. The answer by the counsel for the appellant University is in the
negative. He however states that some other members of the Board of
Management have been nominated by the said Hamdard Family. However
on further enquiry, it is stated that the members of the Board of
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Management, who though may have been nominated by the members of the
Hamdard Family, in functioning as the members of the Board of
Management, are not required to and do not function or act at the behest of
the members of the Hamdard Family and / or are expected to and take
independent decision in the best interest of the appellant University and as
required by law.
16. We have next enquired, whether it is the plea of the appellant
University that the aforesaid nominee members are acting in collusion or in
cahoots with the members of the Hamdard Family.
17. The answer is an affirmative „NO‟.
18. Consequently, we have enquired, whether the aforesaid four members
of the Hamdard Family, who have executed the Family Settlement and who
are also on the Board of Management of the appellant University, are in a
position to sway the decision of the Board of Management as per their
whims and fancies.
19. The answer is again a positive „NO‟.
20. Once it is so, we have enquired from the counsel for the appellant
University, that since the appellant University is not a party to the suits in
which decree was passed and is not a party to the Family Settlement, how is
the appellant University treating itself to be bound thereby or treating itself
to be required to do anything in terms thereof, to be a "person aggrieved"
therefrom.
21. The counsel for the appellant University states that the appellant
University is not bound to act in terms of the Family Settlement or the decree
RFA(OS) No.36/2020 Page 6 of 13
in terms thereof but is under a lot of pressure and coercion from the members
of the Hamdard Family to act and take decisions in terms of the Family
Settlement.
22. If it is so, the remedy of the appellant University is not to file this
appeal but to complain to the UGC or other appropriate authorities against
the alleged illegal conduct of the members of the Hamdard Family or to take
appropriate legal remedies against the illegal conduct, if any of the members
of the Hamdard Family. Similarly, if any of the other members of the Board
of Management of the appellant University, while functioning as a member
of the Board of Management, does anything which is violative of University
Grants Commission Act and the UGC (Institutions Deemed to be
Universities) Regulations or is not in the best interest of the appellant
University or is injurious to the appellant University, the remedy of the
appellant University thereagainst is again, to take appropriate legal action
against the said member/s, for acting in violation of law and / or for acting
against the interests of the appellant University, including of his/her removal
from the Board of Management of the appellant University.
23. Once it is admitted by the appellant University also that the appellant
University is not bound by the Compromise Decree and the Compromise
Decree in law cannot be enforced against the appellant University and that
the parties to the Family Settlement in terms whereof decree was passed,
though members of the Board of Management of the appellant University but
in minority, and not in a position to sway/influence the other members of the
Board of Management of the appellant University to act in violation of law
RFA(OS) No.36/2020 Page 7 of 13
and against the interest of the appellant University, we fail to see how the
appellant University can qualify as „a person aggrieved‟.
24. The counsel for the appellant University refers to Baldev Singh Vs.
Surinder Mohan Sharma (2003) 1 SCC 34.
25. We have perused the said judgment and do not find the same to be
coming to the rescue of the appellant University. Therein, 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 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, 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
RFA(OS) No.36/2020 Page 8 of 13
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.
26. The counsel for the appellant University has next referred to Order
XLIII Rule 1A(2) of the CPC prescribing that in an appeal against a decree
passed in a suit after recording a compromise or refusing to record a
compromise, it shall be open to the appellant to contest the decree on the
ground that the compromise should, or should not have been recorded. It is
contended that the case of the appellant University is that the compromise
should not have been recorded because certain clauses thereof are violative
of law.
27. We are unable to agree. Merely because Order XLIII Rule 1A(2) of
the CPC, in a appeal against a decree in a suit after recording a compromise,
leaves it open to the appellant to contest the decree on the ground that the
compromise should not have been recorded, would not vest a stranger
appealing against the consent decree, with a right to contend that the
compromise should not have been recorded, irrespective of whether such
stranger has a locus or not or is a person aggrieved from the decree or not.
As far back as in Banwari Lal Vs. Chando Devi (1993) 1 SCC 581, it was
explained (i) the experience of the Courts has been that on many occasions
parties, after filing compromise petitions on which decrees are passed, later,
for one reason or the other challenge the validity of such compromise; for
setting aside such decrees, suits used to be filed which used to remain
pending for long; (ii) keeping in view the predicament of the Courts and the
public, several amendments were introduced to Order XXIII; (iii) the object
RFA(OS) No.36/2020 Page 9 of 13
of adding proviso along with explanation, to Order XXIII Rule 3 was, to
compel the party challenging the compromise to question the same before
the Court which had recorded the compromise and that Court was enjoined
to decide the controversy; (iv) having introduced the proviso along with
explanation in Rule 3, in order to avoid multiplicity of suits and prolonged
litigation, a specific bar was prescribed by Rule 3A in respect of institution
of a separate suit for setting aside a decree, by prohibiting such suit; (v)
earlier, under Order XLIII Rule 1(m), an appeal was maintainable against an
order under Order XXIII Rule 3 recording or refusing to record a
compromise; that clause was deleted and as a result whereof now no appeal
is maintainable against an order recording or refusing to record a
compromise; (vi) being conscious that the right of appeal against the order
recording or refusing to record a compromise was being taken away, a new
Rule 1A was added to Order XLIII; (vii) Section 96(3) of the CPC says that
no appeal shall lie from a decree passed by the Court with the consent of the
parties; Rule 1A(2) of Order XLIII has been introduced; (viii) when Section
96(3) bars an appeal against a decree passed with the consent of the parties,
it implies that such decree is valid and binding on the parties unless set aside
by the procedure prescribed or available to the parties; (ix) one such remedy
available was by filing an appeal under Order XLIII Rule 1(m); and, (x) thus
now neither an appeal against the order recording the compromise nor the
remedy by way of filing a suit is available in cases covered by Order XXIII
Rule 3A; as such a right has been given under Order XLIII Rule 1A(2) to a
party who challenges the recording of a compromise, to question the validity
thereof - Section 96(3) of the CPC shall not be a bar to such an appeal
RFA(OS) No.36/2020 Page 10 of 13
because Section 96(3) is applicable to cases where the factum of compromise
or agreement is not in dispute.
28. Though certainly a person aggrieved under Order XLIII Rule1A (2)
of the CPC is entitled to contend that the compromise should not have been
recorded but once the appellant University has not been found to be a person
aggrieved, owing to the decree in terms of compromise being not binding
and / or enforceable against the appellant University, in our view, the
appellant University does not have any locus or cause of action to contend
that the compromise should not have been recorded.
29. The counsel for the appellant University has next referred to Triloki
Nath Singh Vs. Anirudh Singh AIR 2020 SC 2111 but which was
concerned with the question of maintainability of a separate suit by the
plaintiff in a suit in which the compromise decree was passed, for declaration
that the consent decree was not binding. While answering the said question
in the negative, reference was made to Order XLIII Rule 1A(2) and
otherwise the said judgment was not concerned with the question of "locus"
or "person aggrieved". The said judgment thus does not come to the help of
the appellant University.
30. Else, we find Supreme Court to have recently in judgment dated 21 st
August, 2020 in Civil Appeal Nos.2701-2704/2020 titled Sri V.N. Krishna
Murthy Vs. Sri Ravi Kumar to have held (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
RFA(OS) No.36/2020 Page 11 of 13
unless he satisfies the Court that he falls within the category of aggrieved
person; (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.
31. Applying the aforesaid tests, we as aforesaid, are unable to find the
appellant University to be entitled to leave to appeal.
32. The senior counsels for the respondents / parties to the suits also
appear and contend that their objection also is to the maintainability of the
appeal by the appellant University for the reason of being not a party to the
compromise and an appeal against a compromise decree being in any case
not maintainable. Mr. Rajiv Nayar, Senior Advocate also refers to our recent
judgment in Anshu Malhotra Vs. Mukesh Malhotra MANU/DE/1157/2020
where we held the appeal against a consent decree of dissolution of marriage
by mutual consent to be not maintainable. However in view of categorical
judgments aforesaid of the Supreme Court, we do not feel the need to call
RFA(OS) No.36/2020 Page 12 of 13
upon the Senior Counsels for the respondents to address or to discuss the
judgment cited.
33. The appellant University has also impleaded to this appeal the
University Grants Commission (UGC) as respondent No. 7 though UGC also
was not a party to the suits in which the decree was passed. The counsel for
UGC also appears on advance notice and we are confident that if anything
contrary to law is happening in the appellant University, the UGC will take
appropriate action.
34. The application of the appellant University for leave to appeal is thus
dismissed and axiomatically the appeal is also dismissed.
35. However no costs.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J.
OCTOBER 01, 2020 (Corrected and released on 12th October, 2020) „gsr‟..
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