Bombay High Court
Shri Purushottam Pandurang Nipane vs Shri Tarachand Purushottam Nipane And ... on 17 July, 1996
Equivalent citations: (1997)99BOMLR259
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. Original defendant No. 2, presently defendant No. 1 - Purushottam Nipane has filed this revision challenging therein a common order passed on Exhibits 28, 30 and 35. Exhibit 28 is a compromise application, while Exhibit 30 is an objection raised to the same by non-applicant No. 1/plaintiff, and Exhibit 35 is an amendment application again by the plaintiff. By the instant common order, the trial Court has deferred the enquiry into the compromise in Exhibit 28 pursuant to the objection (Exhibit 30) raised by the plaintiff, alongwith the final hearing of the suit, while Exhibit 35 stands allowed and the plaintiff has been allowed to amend his stand. Few facts will be necessary.
2. A Civil Suit came to be filed, being Civil Suit No. 1329 of 1990 for permanent injunction and damages. In this civil suit, the trial Court passed an order of status quo on the temporary injunction application on 18.6.1990. However, the said status quo order was vacated on 1.8.1990. The order vacating the status quo was, therefore, appealed against by the plaintiff. The suit kept on pending and in this suit, defendants filed their written-statement at Exhibit 20. The original defendant, mother of the plaintiff, was deleted, and the present defendant No. 2 was renumbered as defendant No. 1, while present non-applicant No. 2 Prashant Manoharrao Samarth was added as a new defendant No. 2. While the record was pending in the appellate Court in the Miscellaneous Appeal against the order vacating status quo, the parties filed compromise pursis in the trial Court vide Exhibit 28 on 23.4.1993. In the absence of the record, the said compromise was neither read nor recorded by the trial Court and the case was adjourned for awaiting the record; and when the record came, the original plaintiff present non-applicant No. 1 filed an application Exhibit 30 to cancel the compromise (Exhibit 28). He objected to the same on the ground that he was never a party to the compromise. This application was replied by the defendant No. 1 vide Exhibit 33. Thereafter, on 7.9.1993, the plaintiff filed an application (Exhibit 35) for amendment of the plaint. Ultimately, Exhibits 28, 30 and 35 came to be heard and decided and as has already been stated earlier, the trial Court held that Exhibit 28 could not be read and recorded, that the objection (Exhibit 30) was just and proper, but the parties were at liberty to adduce evidence about the validity of the compromise petition (Exhibit 28) at the time of final hearing and necessary issues in that respect would be framed in due course. Exhibit 35, which was an amendment application, the same stood allowed. It is this common order which has been challenged by the present applicant original defendant No. 1.
3. As has already been stated, the parties are near relations, inasmuch as the present applicant is the father while non-applicant No. 1 is the son. Originally, the present applicant was arrayed as defendant No. 2 while the wife of the present applicant, i.e., the mother of non-applicant No. 1, was arrayed as defendant No. 1. These were the only two party-defendants. The mother was deleted during the pendency of the suit and, therefore, the present applicant came to be arrayed as defendant No. 1 instead of defendant No. 2, while one other person came to be joined as a necessary party defendant, he being present non-applicant No. 2-Prashant Manoharrao Samarth. The present revision is at the instance of original defendant No. 2, now defendant No. 1.
4. Shri Khapre, learned Counsel appearing on behalf of the applicant, strenuously contended that the impugned order is patently incorrect and causes a great prejudice to the present applicant/defendant No. 1. He pointed out that the observations by the trial Court regarding the compromise are totally uncalled for. According to him, the course adopted by the trial Court to frame an issue about the compromise and to try the same alongwith the main issues in the suit would mean unnecessary hardship to the defendant No. 1 as, in fact, the compromise had taken place and if the compromise application (Exhibit 28) is accepted, then there would be no necessity to proceed with the suit. According to him, therefore, the objection (Ex. 30) raised by the plaintiff was liable to be rejected. According to him, the order passed on amendment application (Ex. 35) was also wholly incorrect as, in fact, the plaintiff was completely changing his stand and the amendment had the effect of changing the nature of the suit. He pointed out that in the garb of amendment, the plaintiff was changing his position altogether, inasmuch as while earlier he claimed to be a tenant and claimed an injunction on that count; now he had changed his stand and was claiming as a member of the joint family. At any rate, according to Shri Khapre, the whole exercise was futile and unless the compromise application was decided one way or the other, the trial Court could not have decided the amendment application. Shri Khapre drew my attention to Order 23, Rules 1, 2 and 3 of the Code of Civil Procedure, and more particularly to the Proviso to Rule 3, and pointed out that the trial Court had not given any reason for deferring the enquiry on compromise which the trial Court was bound to do. According to him, the trial Court had completely ignored the mandatory provision and, therefore, the order is bad.
5. Shri Daga, learned Counsel appearing on behalf the non-applicants, on the other hand, supported the order. According to Shri Daga, the course adopted by the trial Court was perfectly justified.
6. It will be better to give a brief history of the suit and its pleadings. The plaintiff took a stand that original defendant No. 1 Parvatibai, i.e., the mother of the plaintiff, and Purushottam, the father of the plaintiff, had rented out the premises including shop and store to the plaintiff and the demarcated portion was being used as an open place for storing hardware articles. He pointed out that the said rent of Rs. 75/- per month initially, but was enhanced to Rs. 100/- per month. The rent underwent further enhancement to Rs. 125/- and from 1st October, 1988, the rent was Rs. 150/- per month. The plaintiff claimed that due to the nearness of the relations, there were no rent receipts. He claimed that a Gift Deed was executed by the father original defendant No. 2 on 16th April, 1990 in favour of his brother Manoharrao, and the father came to the plaintiff and threatened that if he (plaintiff) did not vacate the portion rented out to him, he would be thrown out alongwith all the hardware articles and even out of the residential portion. The plaintiff, therefore, claimes that he had sent telegram to the defendant No. 1 requesting him not to take law in his hands and desist from causing injury to him. The plaintiff further averred that on 15.6.1990, defendant No. 2 tried to remove some hardware articles to the open space and some articles worth Rs. 5000/- were broken and damages. The damages on that account were also prayed. The plaintiff further averred that on 18.6.1990, since the defendant No. 2 father tried to break open the lock of the premises on the first-floor which was rented out to him for the purposes of storing his goods, he rushed to the police station and lodged a report. It was on this account that the plaintiff claimed that he being a tenant and there being a separate electrical meter in his name, he was liable to be safeguarded by an injunction, restraining the defendants from tresspassing into the premises of the plaintiff which are rented out to him.
7. A written statement came to be filed and the stand of the original defendants is that it was the plaintiff who was behaving in high-handed fasion. It was virtually refused that plaintiff was a tenant or a licensee and it was pointed out that the premises were exclusively owned by the defendants. The plaintiff was described as a disobedient son blinded by greediness and selfishness, and a design to harass his parents was attributed to the plaintiff. The defendants showed that the property was purchased on 13th May, 1958 by the defendant No. 2 in the name of defendant No. 1 and the rights were transferred in the name of defendant No. 2 in the year 1967. They pointed out that the defendant No. 2 had gifted the shop to Chhaganlal Nipane, Bhayya Nipane, Tarachand Nipane, i.e., the plaintiff; Manohar Nipane; and Smt. Parvatibai Nipane, i.e. defendant No. 1 and Moreshwar Ganpatrao Nipane, i.e., the nephew of the defendant No. 2. It is also pointed out that the rest of the property was totally in possession of the defendant No. 2 and he was the absolute owner thereof. It is also pointed out that some properties were sold to Mrs.Anuradha Mundle by defendant No. 2, and out of that consideration, first and second floors of the above shops on the West High Court Road, were constructed. It was pointed out that all the sons living with defendant No. 2 and they were so allowed. The story of the shop being rented out, was totally denied. It was pleaded that one Partnership Firm was floated in the name and style as 'Nipane Bros', but the same was also dissolved. All the shops were handed over back to the defendant No. 2 on 27.10.1988. It was pointed out that other son Chhaganlal who was the eldest, had also taken the litigation on the similar grounds against the defendant No. 2 but the said suit was dismissed and to that suit the present plaintiff was a party and it was held in that suit that the property was in exclusive possession of defendant No. 2 and that no other sons had any rights whatsoever in the property. It was stated that defendant No. 2, out of love and affections of his sons, had allowed the plaintiff to stay in the two rooms block on the first-floor and also allowed him to run a shop in a 3-shutter corner block on the ground-floor, and this was a purely temporary arrangement till the plaintiff moved his shop block which was also gifted by defendant No. 2. It was, therefore, stated that the plaintiff had, at the most, a status of a permissive occupant. The attempt on the part of the plaintiff was described as a design to usurup the property.
8. As has already been stated, though initially a status quo order was granted by the trial Court, the said order was vacated after hearing the parties, and an appeal against the same came to be filed before the District Court. During the pendency of this appeal, the parties filed the application Exhibit 28. This application is signed by the plaintiff and the defendants as also by their Counsel. The terms indicate that the plaintiff had admitted the exclusive ownership of the defendant No. 2 and that the plaintiff had no rights whatsoever in the property. The plaintiff also agreed to withdraw all the civil suits pending as also the criminal complaint. The defendant No. 2 agreed to sell the shop block to the plaintiff, and the defendant No. 2 also accepted that the plaintiff had paid Rs. 1,20,000/-, while the remaining amount of Rs. 1,62,000/- would be paid within three months by the plaintiff. The plaintiff was also given the exclusive rights of user. The parties also agreed about the temproary arrangements for the storing of the goods. As has already been stated, the said compromise was objected to vide Exhibit 30. The plaintiff, inter alia, contended in that application that since the contents of the compromise were not explained, the compromise application should be treated as cancelled. A fulfledged reply came to be given.
9. Order 23 of the Code of Civil Procedure deals with the subject of compromise. Rule 3 thereof most specifically deals with the compromise of the suit. It provides that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and sighed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith. The Proviso is more specific; and reads as under:
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Shri Khapre, therefore, submits that once there was a compromise application made, the Court was bound to enquire into the matter as per the positive language of the proviso. Shri Khapre also laid a stress on the provision that such enquiry had to be done immediately and if the Court wanted to even defer the enquiry, it had to give the reasons. Shri Khapre pointed out that in the whole order, there is no such reason given for deferring the said enquiry. While discussing this issue, the trial Court in paragraph 6 of its order has firstly observed that since Parvatibai was not a signatory to the compromise, the said compromise would be of no consequence and would be clearly violative of the language of Order 23 Rule 3, which requires all the parties to the suit to put their signatures on the compromise application. The trial Court has also observed further that this compromise should have been entered into before the appellate Court, as the appeal was pending before that Court. The trial Court has also expressed, that on reading the pleadings of the parties, it seems that defendant No. 3 was trying to take benefit of the quarrel between the father and the son. The trial Court, it seems, is much impressed by the fact that the plaintiff was denying the terms of the compromise and the fact that he had entered into compromise. The trial Court thereafter has straighaway proceeded to hold that the compromise was not lawful and further to the satisfaction of the Court. The trial Court, therefore, has recorded a finding that it was not satisfied with the abandonment of the claim of the plaintiff and has, therefore, concluded that the compromise could not be read and recorded and the suit could not be disposed of. Now, having done this, the trial Court then has actually taken a somersault while deciding point Nos. 2 and 3 and has proceeded to decide thereby as to whether the plaintiff can raise an objection (Exhibit 30) to cancel the compromise. Now, having once held that the compromise itself was not lawful and the said could not be read and recorded, there was no further question of deciding as to whether an objection could be raised to the said compromise. Not only this, but the trial Court has also proceeded to observe in paragraph No. 7 of its order that the objections raised by Exhibit 30 on behalf of the plaintiff were just and proper and it was the duty of the court to consider the same while resolving the dispute between the parties. Now, this shows the utter confusion in the mind of the trial Court. If the trial Court wanted to express on the factum and merit of the compromise as it did, there was no question of keeping the matter open and permitting the parties to lead evidence on the fact as to whether there was, in fact, the compromise in between the parties and whether the said compromise could be read and recorded. One fails to understand as to why the trial Court proceeded to record the findings if ultimately it was of the opinion that the parties were at liberty to adduce evidence about the validity of the compromise petition (Exhibit 28) at the time of final hearing. The whole order, therefore, is self-contradictory.
10. As has already been pointed out, Order 23, Rule 3 Proviso of the Code of Civil Procedure contemplates a complete enquiry. Again, the language lays a stress that no adjournment would be granted for the purpose of deciding the question as to whether such compromise was really in existence. There appears to be no such enquiry having been made by the trial Court and it seems that the trial Court has chosen to decide the question merely on the basis of the applications made before it, vide Exhibits 28 and 30. Proviso to Rule 3 of Order 23 casts a duty on the Court where the compromise application is pending to decide as to whether, in fact, the compromise has been arrived at particularly when on party asserts about the compromise and the other party denies the same. Such indeed was the situation in this matter. While defendants assert the factum of compromise alongwith the conditions expressed therein, the plaintiff has denied the same. If we see Exhibit 30, the very factum of compromise is also disputed by the plaintiff. Not only this but the plaintiff further goes on to suggest that there was a fraud played upon him for entering into this compromise. The question, therefore, as to whether the said compromise was in reality there or not and further question as to whether the said compromise could be read and recorded, should have been decided by a full-fledged enquiry for that purpose. Again, because of the positive language of Order 23 Rule 3 Proviso, this enquiry should have been immediately conducted. One can understand that when this application (Ex. 28) was given, since the records of the trial Court were not available, the matter could be and, in fact, was adjourned. However, it seems that the adjournment is not for that purpose; because the positive language of the Proviso to Rule 3 of Order 23, the Court was bound to give reasons as to why it was deferring the enquiry. In this case, the trial Court firstly held that the compromise cannot be read and recorded and indeed such finding could not have been given unless the trial Court had recorded a positive finding regarding the factum of the compromise by deciding a question as to whether the compromise was in reality arrived at between the parties or not and whether the parties had put their signatures on the compromise application. What the trial Court has done is that it had mixed these two questions. After all the question of factum of compromise would be different question for the question of validity of the compromise. The trial Court has in a confused manner dealt with these questions and has committed an error in first refusing to read and record the compromise on the ground that the plaintiff had changed the stand. As regards the factum of compromise, the trial Court has left that question open and has deferred that question to the stage when the evidence in the main suit would be led. Now, all this is clearly contrary to the language of Order 23 Rule 3 of the Code of Civil Procedure, and more particularly the Proviso thereto. The finding given by the trial Court at the end of para 6 is, therefore, premature and has to be set aside. The trial Court was bound to hold an enquiry into the question as to whether there was, in fact, an adjustment or satisfaction, and it is only thereafter that the further question would arise as to whether the terms of the compromise were valid enough so that it could be read and recorded. The whole finding in para 6, therefore, appears to be completely premature. The trial Court has also expressed its doubts regarding the validity of the compromise because of the fact that Parvatibai was not a signatory to such compromise. It is again an admitted position that on 13.9.1993, Parvatibai was deleted from the array of the defendants, the date of which is not known to us. Whether Parvatibai had any interest in the compromise and what is the effect of her subsequent deletion was bound to be considered by the trial Court, which has not been considered at all. The whole case law mentioned by the trial Court in its order, and more particularly in para 6, has been completely misunderstood and was not necessary. The case law is also not discussed at all. The trial Court has also looked askance at the change of the Advocates by the plaintiff. Unless, therefore, there was a full-fledged enquiry into the factum of the compromise, no further findings could have been recorded rewarding the legality or otherwise of the same. Indeed, all this could have been done at one and the same time, after giving the opportunities to the parties to lead evidence on that issue. The trial Court would have been justified in directing the parties first to lead evidence on the question of the existence or otherwise of the compromise and could have then decided as to whether the compromise was valid or not. Instead, the trial Court proceeded to hold that the compromise was not valid and then has given an opportunity to the parties to prove or disprove its existence. The whole thing is like putting a cart before the horse.
11. The trial Court did not stop here, but then proceeded to allow the amendment application (Ex. 35). Now, as a matter of fact Exhibit 35 could never have been decided alongwith the Exhibits 28 and 30. Exhibits 28 and 30 pertain to the compromise, while Exhibit 35 would become relevant only if it is established that the compromise did not exist or that the said compromise was not valid and further that the suit had to proceed. The question of amendment would become relevant only if the suit is to proceed further. The trial Court should not have, therefore, disposed of Exhibit 35 by a common order. A separate order should have been passed on Exhibit 35. Again, even on merits, the trial Court has in a skeleton manner observed that the amendment did not change the nature of the suit and that the plaintiff cannot be the tenant of his own father in the suit premises. All these observations are firstly unnecessary and unwarranted. The trial Court tends to test the amendment application on the basis of the merits of the amendment sought for. All this is totally impermissible.
12. Shri Daga, learned Counsel appearing on behalf of the non-applicant/plaintiff very strongly urged that there would be no point in first enquiring into the compromise. According to him, the course adopted by the trial Court was a correct course in law. He mainly relied upon the provisions of Section 96(3) of the Civil Procedure Code and pointed out that no appeal lies from a decree passed by the Court with the consent of the parties. He, therefore, contended that if the Court came to the conclusion that the compromise was a valid compromise and the Court proceeded to pass a decree on the basis of that compromise, the party would never be able to file an appeal. He, therefore, contended that it is essential that the question as to whether there was, in fact, a compromise and whether the said compromise was a valid compromise or not, should always be decided with the other issues in the suit so that even if the Court comes to the conclusion that the compromise was good and passes a decree thereupon, the plaintiff would be able to file an appeal even on the merits. According to him, the Court must record the findings even on the merits of the suit so that the party would have an opportunity to file an appeal against the other findings on merit of the suit besides compromise. The argument is wholly untenable. Firstly, the contention of Shri Daga that there is no appeal against the compromise decree is itself incorrect. The Supreme Court in the reported decision in Banwarilal v. Smt. Chando Devi has clearly held that there can be an appeal against a decree passed by compromise. The Supreme Court has also pointed out as to how Section 96(3) of the Civil Procedure Code can be read alongwith Order 43 Rule 1A(2). Therefore, this argument loses all its significance,
13. Considering the order on merits, one cannot say that the trial Court was alive to the Proviso to Rule 3 of Order 23 and realised the implication thereof. There is absolutely no reason stated by the trial Court as to why the whole enquiry regarding the compromise has been deferred to and tagged with the final dispose of the suit itself. Now, if the compromise is accepted, the further exercise by the trial Court in deciding the main issues of the suit would be futile as that would not be necessary at all and the suit can be straightaway disposed of on terms of the compromise themselves. Again, the language of the Proviso, and more particularly the caution sounded against the adjournment, suggests volumes whereby the Court is required first to decide the question regarding the compromise. Of course, there could be no hard and fast rule as to under what circumstances the adjournment could be granted or not, but the requirement of the Court regarding its reason for adjourning the matter also cannot be ignored and goes on to suggest that it is the duty of the Court, as far as possible, to decide the compromise issue first. Undoubtedly, there could be circumstances when the decision on such question could be deferred, but one can positively say that there are no such circumstances disclosed and apparent in the present case, nor has the Court bothered to give any reason as to why the issue of compromise has been deferred. Under the circumstances, it could always be advisable for the trial Court in this case to first decide the issue regarding the compromise and to decide as to whether the compromise existed, and if it did, whether it was a legal and valid compromise or not. It is only then that the trial Court could proceed to hold the trial of the suit, if necessary. Needless to mention that it is only then that the merits of Exhibit 35-amendment application-could be considered.
14. In the result the Civil Revision Application succeeds. The common order on Exhibits 28, 30 and 35 passed by the trial Court is set aside. The trial Court is directed first to enquire into Exhibits 28 and 30 and then to take further course as is required by law. In view of the nearness of the relations, it will be better if the enquiry under Order 23 Rule 3-Proviso of the Code of Civil Procedure is done expeditiously, as far as possible within six months from the date of receipt of the writ. The Civil Revision Application stands allowed with costs, in the light of the observations made above.