Calcutta High Court
Rabindra Kumar Mehra vs Tara Chand Mehra & Ors on 14 July, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No: GA 22 of 2019
(Old No: GA 2775 of 2019)
In CS 90 of 2012
Rabindra Kumar Mehra
Versus
Tara Chand Mehra & Ors.
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Satadeep Bhattacharyya
Ms. Sonia Sharma
... for the plaintiff.
Mr. Lalratan Mandal
...for the defendant no. 1.
Mr. Sankarsan Sarkar
Mr. Aditya Kanodia
Mrs. Bani Ghosh
Ms. S. Sardar
...for the defendant no. 2.
Mr. Rajib Ray
Ms. Sohini Kundu
...for the defendant nos. 4 & 5.
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Mr. Rahul Karmakar
Ms. Papiya Roy
...for defendant no. 3 series.
Hearing Concluded On : 10.05.2023
Judgment on : 14.07.2023
Krishna Rao, J.:
1. By an order dated July 8, 2019, this Court had passed the following order:
"This is a suit for partition. All the parties are represented by their respective Counsels. It is agreed by the Learned Counsels that the suit may be decreed. Accordingly, the suit be and the same is decreed in preliminary form. It is declared that the plaintiffs and the defendants are entitled to their respective shares indicated in paragraph 19 of the plaint. Such shares are, accordingly, declared. Decree be drawn up expeditiously.
To effect the partition in between the co sharers by metes and bounds let a Commissioner of Partition be issued to cause partition of the suit property. The Commissioner of Partition shall complete the partition work within three months.
Mr. Gautam Kumar Ray, Learned Advocate (9073911724) is hereby appointed Commissioner for Partition for the purpose as aforestated.
For the present the Commissioner of Partition will be paid a sum of Rs. 25,000/- which shall be borne by the parties in equal share and be paid within fortnight. However, further remuneration will be considered after 3 the report is filed by the Commissioner of Partition in Court, after the partition is completed. The Commissioner is also permitted to take assistance of any surveyor, if he deems fit, but after obtaining leave of this court.
Parties will be at liberty to pray for final decree after Commissioner of Partition files report."
2. Being aggrieved with the order dated July 8, 2019, the defendant No. 3 had preferred an appeal before the appellate Court being APO No. 137 of 2019 and the Hon'ble Appeallate Court by an order dated 11th November, 2019 had dismissed the appeal filed by the defendant No.3 on the ground of maintainability without going into the merits of the matter.
"The appeal is not maintainable since the opening paragraph of the preliminary decree dated July 8, 2019 which is challenged in this appeal read as follows:
"This is a suit for partition. All the parties are represented by their respective Counsels. It is agreed by the learned Counsels that the suit may be decreed. Accordingly, the suit be and the same is decreed in preliminary form. It is declared that the plaintiffs and the defendants are entitled to their respective shares indicated in paragraph 19 of the plaint. Such shares are, accordingly, declared. Decree be drawn up expeditiously. "
It is elementary that a Court is the master for recording what transpires before it and once a Court has recorded that the representatives of the parties had 4 submitted to the decree or had agreed to a form of an order, nothing contrary to what is so recorded may be accepted. It is equally rudimentary that when a party submits to a decree or accepts a position and such acceptance is recorded in the order of the relevant Court, no appeal may be filed by such party against the relevant order.
In view of the recording as quoted above, the appeal is not maintainable. If it is the appellants' understanding or perception that what has been recorded in the order dated July 8, 2019 as quoted above is not an appropriate recording of what transpired before the Court at the time of the hearing, it will be open to the appellants to take out an appropriate application before the court of the first instance. APO No. 137 of 2019 along with GA No. 2005 of 2019 are dismissed as not maintainable without going into the merits of the matter."
3. After dismissal of the appeal, the defendant No.3 has filed the present application being G.A 22 of 2019 in CS No. 90 of 2012 for recalling of the order dated July 8, 2019 passed in CS No. 90 of 2012 and fixing the case for argument.
4. Mr. Rahul Karmakar, the learned Advocate representing the defendant No.3 submits that the plaintiff has filed the suit praying for preliminary decree and final decree for partition of the Premises No.13, Rabindra Sarani, Kolkata - 700073, by metes and bounds and in the alternative, by sale and division of the sale proceeds in accordance with the shares of the parties as per para 19 of the plaint and other prayers. 5
5. Mr. Karmakar submitted that the defendants are contesting the suit by filing written statement and the defendant No.3 had also filed written statement along with counter claim with respect of an amount of Rs.11,93,935/- towards the claim of money which is spent on account of repairs of the joint property.
6. Mr. Karmakar submitted that on July 7, 2014 when the suit was taken up for hearing, this Court in presence of the learned Advocate appearing on behalf of the plaintiff and the defendant no.1 passed a preliminary decree by holding that there is clear admission in the written statement filed by the defendants with respect of their share and also appointed Partition Commissioner to effect partition to the property. As the defendant No.3 had not given consent for passing preliminary decree, therefore the defendant No.3 had filed an application for recalling of the order dated July 7, 2014 but this Court had dismissed the said application. Being aggrieved with the order, the defendant no.3 had preferred an appeal before the Appellate Court being APOT No. 545 of 2014. By an order dated September 26, 2014, the Appellate Courthad disposed of the said appeal by passing the following order:
"In that view of the matter, having regard to the entire pleadings and the stand of the appellant-plaintiff, no prejudice would be caused to the respondents if the order of 7.7.2014 is recalled as the respondents would still be having an opportunity to contend that there was already a settlement in 1996 and the parties are bound by the same. Ultimately, it would be for the Trial Court to decide whether the suit has to be 6 allowed for partition by metes and bounds or there was already a settlement which has to be implemented. Accordingly, the impugned order is set aside recalling the order dated 7.7.2014 whereby the parties are allowed to participate in the proceedings of the suit and get the suit disposed of on merits. "
7. Mr. Karmakar submitted that after the remand of the suit by the Appellate Court, the parties to the suit have adduced their respective evidence and on completion of the evidence of all the parties, this Court had fixed the matter for argument on January 4, 2017.
8. Mr. Karmakar submitted that lastly the matter was listed on July 8, 2019 under the heading "To be Mentioned". He submits that as the matter is fixed under the heading to be mentioned and the date will be fixed for argument accordingly the advocate on record being a junior member of the bar was sent to the Hon'ble Court to attend the matter and to take date for argument. He further submits that the learned junior member of the bar was unable to understand the implications of the order which was being passed by this Court and as such inadvertently, the consent of the defendant no.3 in decreeing the suit in preliminary form was recorded.
9. Mr. Karmakar submitted that the defendant No.3 since inception of the suit is contesting the suit and the defendant No.3 had taken a specific plea to enforce the amicable partition effected 20 years back. He also submits that the Hon'ble Division Bench while remanding the matter by an order dated September 26, 2014 parties were allowed to 7 participate in the proceeding of the suit and get the suit disposed of on merit but by an order dated July 8, 2019, this Court had passed the impugned order without looking into the order passed by the Appellate Court as well as the written statement and counter claim filed by the defendant No.3.
10. Mr. Karmakar submitted that the consent recorded in the impugned order nullifies the order passed by the Hon'ble Division Bench and the amicable family partition that had been executed and partly acted upon by the parties hereto and reveals that the suit property is sold out. He submits that this Court ought not to have been taken the matter for hearing as the matter was listed under the heading "To be Mentioned".
11. Mr. Karmakar submitted that due to inadvertence and misunderstanding of the defendant No. 3 with the consequences of the nomenclature in the listing, the learned Senior Counsel for the defendant No.3 was unable to be present appropriately on the date of hearing and as such, the correct state of affairs and assistance could not be provided to this Court.
12. Mr. Karmakar submitted that the impugned order dated July 8, 2019 is not recalled and the defendant No.3 is not given an opportunity to argue the case on the issue of implementation of the family partition deed, the defendant no.3 will suffer irreparable loss an injury.
13. Mr. Karmakar in support of his case has relied upon the following judgments:
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i. 64 Ind Cas 228 (Khitipati Roy - vs- Dharani Mohan Mookerjee).
ii. (2008) 2 SCC 280 (Oriental Bank of Commerce - vs-
Sunder Lal Jain and Another).
iii. (2006) 11 SCC 114 (Rama Narang -vs- Ramesh Narang & Another).
iv. 1939 SCC OnLine Cal 312 (Raj Kumar and Anr -vs-
Shiva Prasad Gupta & Others).
v. (R. Rajanna -vs- S.R. Venkataswamy & Ors) in Civil Appeal Nos. 10416 -10417 of 2014.
vi. (2021) 3 SCC 702 (Compack Enterprises India Private Ltd. -vs- Beant Singh).
vii. Pushpa Devi Bhagat (D) Th. Lr. Smt. -vs- Rajinder Singh & Ors in Civil Appeal No. 2896 of 2006.
14. Mr. Abhrajit Mitra, learned Senior Advocate representing the plaintiff submits that the defendant No. 3 has filed the present application for recalling of the preliminary decree passed by this court dated July 8, 2019 but the defendant No. 3 had admitted in paragraph 10 of the written statement with respect of 1/5th share each of the parties. He further submits that the defendant No.3 has filed the present application mainly on the ground that there was an amicable settlement on October 6, 1996 and August 6, 1997 but no such evidence was brought on record during the evidence with regard to such settlement.
15. Mr. Mitra, learned Senior Advocate submitted that on completion of evidence when the matter was heard on January 5, 2018, the defendant No.2 came with a proposal that the said premises may be 9 sold and the proceeds can be distributed between the parties to the suit. He submits that at the time of said proposal, the learned Counsel for the defendant No.3 was present and as per his prayer to seek instructions, the matter was adjourned though other parties to the suit were agreeable.
16. Mr. Mitra, learned Senior Advocate submitted that in the impugned order, this Court expressly recorded that all the parties through their respective counsels had agreed to a preliminary decree being passed in the partition suit with the shares of the parties as indicated in paragraph 19 of the plaint i.e. 1/5th share each.
17. Mr. Mitra, learned Senior Advocate submitted that the defendant No.3 has filed a counterclaim and the said counter claim has not been decreed. He submits that as per Order VIII, Rule 6A and 6F of the Code of Civil Procedure, 1908 counterclaim is an independent suit and should be treated as plaint. He submits that the counterclaim of the defendant No.3 is pending for adjudication.
18. Mr. Mitra, learned Senior Advocate submitted that in the appeal filed by the defendant no.3, it is stated that the counsel for the defendant who had appeared on that day had not given consent and the consent was wrongly recorded in the impugned order. On the basis of the said submission and averments in the Memorandum of Appeal of the defendant no. 3, the Appellate Court had given liberty to the defendant No. 3 to take out an application before this Court. He submits that it 10 was not the case of the defendant No.3, in the appeal that the Counsel for the defendant No.3 had given consent but without authority.
19. Mr. Mitra, learned Senior Advocate submitted that the defendant No.3 had made out a completely different case in the present application from the appeal preferred by the defendant against the order in question. He submits that in appeal the defendant No.3 had made out a case that the Counsel for the defendant No.3 had given consent but had no instructions to do so and consent was given inadvertently but in the present application, the defendant no.3 has made out a case that the matter will not be heard on the date fixed for argument.
20. Mr. Mitra, learned Senior Advocate submitted that the defendant No.3 is estopped by applying the doctrine of estoppel by pleading and making out completely new case inconsistent with the case in appeal. He submits that an application is in effect and substance an application for review cannot be entertained unless it is in compliance with Order XLVII of the Code of Civil Procedure, 1908. He submits that an application for review and fresh hearing in the grab of an application for recalling cannot be entertained.
21. Mr. Mitra learned Senior Advocate relied upon the following judgments:
i. 2015 SCC OnLine Cal 3642 (Adhir Ranjan Kar -vs-
Atanu Kumar Mondal & Anr.).
ii. (2015) 8 SCC 519 (Dharampal Satyapal Limited -
vs- Deputy Commissioner of Central Excise, Gauhati and Others).11
iii. (2003) 8 SCC 673 (Sushil Kumar -vs- Rakesh Kumar).
iv. (2004) 12 SCC 713 (Ram Chandra Singh -vs-
Savitri Devi and Others).
v. (1999) 4 SCC 396 (Budhia Swain and Others -vs-
Gopinath Deb and Others).
vi. (2006) 7 SCC 756 (Jai Narain Parasrampuria
(dead) and Ors. - vs - Pushpa Devi Saraf and Ors).
22. Mr. Sankarsan Sarkar, learned Advocate representing the defendant No. 2 submitted that the defendant No.3 is in illegal occupation of various parts of the suit property which belongs to other parties and the evidence tendered by the defendant No.3 would establish that the defendant No.3 has failed to prove his case. He submits that the defendant No.3 had agreed before this Court for a consent order and after expiry of almost 50 days, first time objected to the consent in the appeal was filed on August 27, 2018 and by an order dated July 8, 2019, the Advocate Commissioner had already been appointed and the Advocate Commissioner had taken substantial steps.
23. Mr. Sarkar submitted that the defendant No.3 had suppressed the order dated June 5, 2018 passed in the present suit wherein the defendant No.3 had sought time to take instruction in the matter of passing of a consent decree on the proposal made by the defendant No.2.
24. Mr. Sarkar submitted that the matter was listed on December 6, 2018 but none appeared except the defendant No. 2 and the matter was adjourned with direction to serve notice on other parties. Accordingly, 12 notice was served upon all the parties including the defendant No.3 and finally, the matter was taken on July 8, 2019 under the heading "To be Mentioned" and on the date fixed, all the parties were present and with the consent of all the parties this Court had passed an order.
25. Mr. Sarkar reiterated the submissions made by the learned Senior Advocate Mr Mitra. He relied upon the judgment reported in (2009) 9 SCC 689 (Shub Karan Bubna -vs- Sita Saran Bubna and Others).
26. Heard the learned counsel for the respective parties, perused the materials on record and the judgments relied upon by the parties.
27. On earlier occasion by an order dated July 7, 2014, this Court passed the following order:
"In view of the clear admission in the written statement filed by the defendants with regard to the shares as mentioned in paragraph 19 in the plaint, there shall be a preliminary decree for partition of premises No. 13, Rabindra Sarani, Kolkata - 700073, more fully described in schedule - 'B' herein, by meters and bound. The learned counsel submits, at this stage, that none of the parties would have any objection if the terms of settlement arrived at between the parties are implemented. Since it involves the question of implementation of the terms of settlement, it is desirable that a Commissioner of Partition be appointed to give effect to the terms of settlement and partition the property on the basis of the terms recorded in the said terms of settlement and before this court as recorded in the subsequent paragraph.
The learned counsel for the parties, however, agreed that in so far as the ground floor is concerned and as recorded in the terms of settlement that it would remain common to all the aforesaid persons requires variation as it would not be possible to partition the same by metes and bounds having regard to the fact that there are some occupiers and tenants 13 at the ground floor and are not fully in occupation of the parties. In view of the agreement reached before this Court by the Parties, in so far as the ground floor is concerned, the partition should be effected taking into consideration the aforesaid facts and the agreement reached between the parties.
Miss. Piyali Sengupta, a member of the Bar Library Club is appointed as Commissioner of Partition. She would effect partition of the property on the basis of the terms of settlement annexed to the plaint and the agreement reached between the parties in Court as recorded above in respect of the ground floor.
The parties are directed to assist the Commissioner of Partition in demarcating the areas according to the shares as declared in the preliminary decree. The Commissioner of Partition is directed to file the return of the commission within a period of six weeks from the date of communication of this order.
The suit is, accordingly, decreed in preliminary form.
The department is directed to draw up the preliminary decree as expeditiously as possible.
The Commissioner of Partition shall be paid an initial remuneration of 1500 GMs to be shared by the parties equally. "
The plaintiff had challenged the said order in an appeal being APOT No. 545 of 2014 and the Appellate Court disposed of the said appeal on September 26, 2014 as mentioned in para 6 (supra). In the said appeal, the Hon'ble Division Bench has taken into consideration of the pleading of all the parties of the suit and directed to dispose of the suit on merit. After the order of the Appellate Court, the parties have led evidence and after closing the evidences of all the parties, this Court had fixed the matter for argument on January 4, 2017. Since, then the 14 matter was fixed for argument and on June 5, 2018, the Counsel appearing for the defendant No.2 has come with the proposal that the property in question being the four storied building be sold off and the proceeds be distributed between the parties to the suit. Counsel for the defendant No. 3 has sought for adjournment for taking instructions. Thereafter the matter was listed on December 3, 2018 but none appeared except the defendant No. 2 and on December 6, 2018, the Counsel for the defendant No. 2 had circulated a notice. The matter was listed on January 21, 2019 but none appeared on behalf of either of the parties, accordingly, the matter was adjourned till the month of February' 2019. On July 8, 2019, the matter was listed as"To be Mentioned" and the order was passed for preliminary decree.
28. In the order dated July 8, 2019, it is recorded that all the parties are represented by their respective Counsels. It is agreed by the learned Counsels that the suit may be decreed. Accordingly, the suit be and the same is decreed in preliminary form. It is declared that the plaintiffs and defendants are entitled to their respective shares indicated in paragraph 19 of the plaint. Such shares are, accordingly, declared.
29. The defendant No.3 in the Memorandum of Appeal against the order dated July 8, 2019 passed by this Court had taken the following grounds :
"I. FOR THAT the Learned Judge erred in law and on facts in passing the impugned Judgment dated 8th July, 2019.15
II. FOR THAT the Learned Judge erred in law and on fact while recording that the learned counsel have that agreed the suit may be decreed when as a matter of fact, the Learned Advocate for the Appellant never agreed to anything save and except beyond the provision of law.
III. FOR THAT the Learned Judge erred in law and on fact thereby without mentioning the exact share purported to have been allotted to parties save and except simple declaring the share.
IV. FOR THAT the Learned Judge erred in law and on fact by not considering the written statement with counter claim filed by the appellant/defendant no. 3.
V. FOR THAT the Learned Judge erred in law and on fact thereby not considering that the properties were already partitioned by several MEMO OF UNDERSTANDING'S dated 6th October, 1996, 6th August, 1997 and on a Rs. 50.00/- Stamp Paper Dated 23rd May, 1998.
VI. FOR THAT the Learned Judge exceeded his jurisdiction while passing the impugned the judgment dated 8th July, 2019.
VII. FOR THAT the Learned Judge has passed the impugned Judgment without application of mind and on mere surmises and without considering the submissions made by the appellants at the times of hearing.
VIII. FOR THAT the impugned Order is wrong, erroneous, illegal and unsustainable both in law and on facts.
IX. FOR THAT the impugned order should be set aside, cancelled and/or quashed."
In the present application, the defendant No. 3 has made out the following case in paragraph 15 of the present application:
"That being under an impression that a date of argument was to be fixed on the said date and as such, only instructed the Advocate-on-record 16 being a Junior Member of the Bar to take note of the said date fixed for argument. The said Learned Advocate being a Junior Member of the Bar was unable to understand the implications of the order which was being passed by the Hon'ble Justice Sahidullah Munshi and as such, inadvertently, the consent of your petitioners in decreeing the suit in a preliminary form was recorded. Your petitioners have been throughout fighiting for the cause to protect the suit property and enforce the amicable partition effected 20 years back. Your petitioners have already acted along with the other parties in furtherance of the said deed. The Hon'ble Division Bench while remanding the matter also required the suit Court to adjudicate on the issue as regards enforcement of the said family partition. None of the above were canvassed by any of the parties and on the contrary, the order impugned had been made to be passed without indicating the correct state of affairs before His Lordship. "
30. In the case of Rama Narang (Supra),the Hon'ble Supreme Court held that in passing the decree by consent, the Court adds its mandate to the consent. A consent decree is composed of a command and a contract. The Bombay High Court's view in Bajranglal Gangadhar Khemka correctly represents the law that a consent decree is a contract with the imprimatur of the Court. "Imprimatur" means "authorised" or "approved". In other words by passing a decree in terms of a consent order the Court authorises and approves the course of action consented to. Moreover, the provisions of Order 23, Rule 3 of the Code of Civil Procedure, 1908, require the court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement.
17
31. In the case of Pushpa Devi Bhagat (Supra), the Hon'ble Supreme Court held that "the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the Court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the Court which recorded the compromise, will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made".
32. In the case of Compack Enterprises India Private Limited (Supra), the Hon'ble Supreme Court held that it is well-settled that consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties. Resultantly, this Court has held that it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree unless it is done with the revised consent of all the parties thereto. However, this formulation is far from absolute and does not apply as a blanket rule in all cases. This Court in Byram Pestonji Gariwala v. Union Bank of India has held that the consent decree could not serve as an estoppel, where the compromise was vitiated by fraud, misrepresentation, or mistake. Further this Court in the exercise of its inherent power may also unilaterally rectify a consent decree 18 suffering from clerical or arithmetical errors, so as to make it conform with the terms of the compromise".
33. The main contention of the plaintiff and the defendant No.2 is that the defendant No.3 has taken different ground in the appeal then the averments made in the present application. It is the contention of the plaintiff and the defendant no.2 that the defendant no.3 stated in the appeal that the defendant No. 3 has not given consent and the consent was wrongly recorded but in the present application it is mentioned that the Advocate had given consent but had no instruction to do so and as such the consent has been given inadvertently.
34. Mr. Mitra, learned Senior Advocaterelying upon the judgment in the case of Sushil Kumar (supra) submitted that a person should not be permitted to take advantage of his own wrong. He should either stand by is a statement made before a Court of law or should explain the same sufficiently. In absence of any satisfactory explanation, the Court will presume that the statement before a Court is correct and binding on the party on whose behalf of the same has been made.
35. Mr. Mitra relying upon the judgment of Jai Narain Parasrampuria (Supra) submitted that while applying the procedural law like the principle of estoppel or acquiescence, the Court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict.
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36. In the present case, this Court passed preliminary decree by recording that all parties are represented by the respective Counsels and it is agreed by the learned Counsels that the suit may be decreed. It is the specific case made by the defendant No.3 in the ground No.II of the appeal, the Advocate for the appellant never agreed to anything save and except beyond the provisions of law. In the present application, it is contended that the learned Advocate being the junior member of the Bar unable to understand the implication of the order which was being passed by this Court and as such inadvertently, consent of your petitioner indicating the suit in preliminary form was recorded. On plain reading of both the contention of the defendant No.3, this Court does not find that the defendant No.3 has made different statement in both Courts. Accordingly, the principle of estoppel and acquiescence is not applicable in the present case.
37. This Court by order dated July 8, 2019 while passing preliminary decree declared the shares of the respective parties indicated in paragraph 19 of the plaint. On earlier occasion also this Court by an order dated July 7, 2014 passed Preliminary Decree on consent in terms of paragraph 19 of the plaint. The plaintiff had challenged the said order before the Appellate Court and the same submission was made that the Senior Counsel who had the instruction was not present at the time of submission on July 7, 2014 but it was junior without understanding the implication of the order did not resist the claim of the respondent. The Hon'ble Division Bench while deciding the said 20 appeal also held that it would be for the Trial Court to decide whether the suit has to be allowed for partition by metes and bounds or there was already a settlement which is to be implemented. The Hon'ble Division Bench while setting aside the order dated July 7, 2014, allowed the parties to participate in the proceedings of the suit and get the suit disposed of on merits. After the order of the Hon'ble Division Bench evidence of the parties were recorded and the matter was fixed for argument. The defendant No.3 claiming partition in terms of the settlement arrived in the year 1996 but the plaintiff and the defendant No. 2 have not agreed with the said plea taken by the defendant No.3. On October 7, 2021, the defendant Nos. 1, 4 and 5 have not objected for recall the order dated July 8, 2019 but at the time of hearing of the present application the said defendants have supported the argument made by the plaintiff and the defendant no. 2.
38. Considering the above facts, this Court finds that since filing of the written statement, the defendant no.3 has relied upon the settlement of 1996 and had also filed a counterclaim on the basis of the settlement and at the time of passing the preliminary decree dated July 8, 2019, the arguing Counsel of the defendant no. 3 was not present. None of the parties brought to the notice of this Court with respect of the counter claim or the order passed by the Hon'ble Division Bench dated September 26, 2014. The Hon'ble Division Bench allowed the parties to participate in the proceedings of the suit and to get the suit disposed of 21 on merit. Thus this Court is of the view that the suit is to be disposed of on merit.
39. In view of the above, the order dated 8th July, 2019 is recalled and the parties are directed to argue the matter on merit.
40. Let, CS No. 90 of 2012 be fixed for argument on 25th August, 2023 at 02:00 P.M.
41. G.A No. 22 of 2019 is thus disposed of.
(Krishna Rao, J.)