Andhra HC (Pre-Telangana)
Khaja Syed Shah Baba Abdul Hissaini ... vs Syed Nazmuddin Hussaini (Died) And Syed ... on 28 June, 2002
Equivalent citations: 2003(3)ALD341, 2002 A I H C 4907, (2003) 3 CIVLJ 369, (2003) 3 ANDHLD 341, (2003) 3 ICC 719
JUDGMENT Dubagunta Subrahmanyam, J.
1. This is an appeal filed against the judgment and decree dated 18.5.1994 in A.S.No.44 of 1988 on the file of Additional District Judge, Hindupur, confirming the decree and judgment dated 31.10.1988 in O.S.No.67 of 1986 (O.S.No.100 of 1983 on the file of District Munsif, Penukonda) on the file of Subordinate Judge, Penukonda.
2. Necessary facts for the disposal of this second appeal are as follows:
There is a Dargah of Saint Syed Shah Baba Fakruddin at Penukonda in Anantapur District. On the day of annual Urs every year, Sandal ceremony will be performed in the said Dargah. The first appellant filed the suit O.S.No.67 of 1986 seeking declaration that the first defendant is entitled to perform the ceremony called as Chinna Gandham Ceremony between 11.00 p.m., and 12.00 midnight only at the time of annual Urs in the Dargah every year and consequential permanent injunction restraining the defendants, their men and agents from conducting Chinna Gandham ceremony at any other time other than 11.00 p.m. and 12.00 midnight. Sandal ceremony will be performed by the members of the family of the first defendant and thereafter the members of the family of the plaintiff will perform another Sandal ceremony in the same Dargah. The Sandal ceremony being performed by the first defendant is called by the plaintiff in the plaint as Chinna Gandham ceremony. The defendants contested the suit taking the plea that firs defendant and his family members are entitled to perform the Sandal ceremony from 11.00 p.m. to 2.00 a.m., on the day of annual Urs ceremony. Prior to the present suit, the first defendant filed a suit in O.S.No.285 of 1960 on the file of Additional District Munsif, Penukonda seeking declaration of exclusive right of himself and members of his family to perform First Sandal Ceremony during the annual Urs at suit Dargah and for permanent injunction restraining the defendants therein from interfering with his said right. The 1st appellant herein contested the said suit vehemently. The said suit was decreed by the trial court on 31.12.1965. Thereupon the first appellant herein preferred an appeal in A.S.No.126 of 1966 on the file of Additional District Judge, Anantapur. The said appeal was dismissed by the appellate court. Thereupon he preferred a second appeal in S.A.No.530 of 1968 on the file of this court. The second appeal was dismissed by this court by judgment dated 14.4.1970. In the above judgment, this court stated that for the upkeep of suit Dargah, 9 villages were granted as Inam by a Hindu King in 14th or 15th Century, the Inam villages were divided into six shares, one such share was allotted for defraying the expenses of performing annual Urs and other expenses of the Dargah and the other five shares were enjoyed by the five sharers who are the direct descendants of the Saint. It is further stated in the above judgment by this court that one of the important ceremonies connected with the Urs is known as First Sandal Ceremony (First Gandham Ceremony) and the family of the plaintiff therein was performing the said First Sandal Ceremony. The trial court held in the present suit in O.S.No.67 of 1986 that this said suit was barred by principle of res judicata in view of the judgment in O.S.No.285 of 1960 confirmed by this court in S.A.No.530 of 1968. The judgment in O.S.No.285 of 1960 is marked in the present suit as Ex.B.1.Similarly the judgment of this court in S.A.No.530 of 1968 is marked as Ex.B.2. The plaintiff in O.S.No.67 of 1986 died and the present 2nd appellant came on record as second plaintiff in the suit. Similarly the first defendant in the suit also died and defendants 15 to 22, namely, respondents 15 to 22 came on record as legal representatives of the deceased first defendant during the pendency of the suit.
3. During the pendency of the appeal in A.S.No.44 of 1988, the 2nd appellant and respondent No.13, and respondents 16 to 20 before the lower appellate court entered into a compromise and filed a compromise petition. The compromise is to the effect that the first defendant and his family members can perform the First Sandal Ceremony between 11.00 p.m. and 12.00 midnight only. The lower appellate court held that First Sandal Ceremony during specified hours and other followers of defendant No.1 participating in the said function during specified hours is an indivisible right. It held further that respondents 13 and 16 to 20 colluding with the opposite party, namely, 2nd appellant cannot alter the timings during which the ceremony has to be performed actually and dictate the contesting respondents and other followers to participate in the function at their will. It further held that there is nothing in Order XXIII Rule 3 C.P.C., which indicates that passing of decree must immediately follow recording of compromise and a duty is cast upon the court to see whether a valid compromise was arrived at between the parties. According to the lower appellate court in the present case there is a plea of res judicata and the court cannot pass a decree in terms of the compromise immediately. According to the lower appellate court, the strength and weaknesses of the suit also becomes relevant while passing the decree in terms of the compromise and in the instant case the compromising respondents put an end to the prevailing usage and custom and colluded with the 2nd appellant, they acted in clear disregard of the rights of the other contesting respondents and other followers, there are no bona fides on the part of the compromising respondents, the filing of the compromise petition is only to get rid of the adverse findings of the court basing on the principles of res judicata, the principles embodied in Section 11 C.P.C., prevails over the agreement of the parties and if the court passes any decree in terms of the compromise, it will be without jurisdiction. On the above grounds, the lower appellate court declined to pass a compromise decree. As clear from para 17 of the lower appellate court judgment, the parties to the compromise petition accepted before the lower appellate court the terms of the compromise.The lower appellate court also mentioned that the compromise is recorded, but it refused to pass a decree in terms of the compromise entered into between some parties to the appeal pending before it. After refusing to record the compromise in question, it further held that the suit instituted by the first appellant herein was barred by the principle of res judicata in view of the earlier judgments in Exs.B.1 and B.2. Accordingly the lower appellate court dismissed the appeal. Aggrieved by the said judgment and decree of the lower appellate court, the appellants herein preferred the present second appeal.
4. It is contended on behalf of the appellants that the suit in O.S.No.67 of 1986 was not barred by the principle of res judicata and the lower appellate court committed an error in not passing a decree in terms of the compromise entered into between some of the parties to the appeal pending before the lower appellate court. On the other hand, the contesting respondents in this appeal contended that the lower appellate court rightly refused to record the compromise and the suit was barred by the principle of res judicata.
5. In view of the facts and circumstances of the present case, the following questions of law arise for determination in the present appeal.
(i) Whether the suit in O.S.No.67 of 1986 is barred by principle of res judicata in view of the earlier judgments in Exs.B.1 and B.2?
(ii) Whether the lower appellate court was not right in refusing to pass a decreein terms of the compromise entered into between the second appellant herein and respondents 13, 16 to 20?
6. POINT NO: I: The two courts below are of the opinion that O.S.No.67 of 1986 is barred by principle of res judicata in view of the earlier judgment in O.S.No.285 of 1960 as confirmed by this court in S.A.No.530 of 1968. In my considered opinion , the two courts below had not understood the scope of the two suits concerned in correct perspective and therefore they committed an error in coming to the conclusion that the present suit is barred by principle of res judicata. I give the reasons hereunder. In O.S.No.285 of 1960 the first defendant herein sought a declaration that he is entitled to perform First Sandal Ceremony in the suit Dargah. The plea of the defendants in the said suit O.S.No.285 of 1960 was that the plaintiff therein has no right at all to perform Sandal Ceremony in the suit Dargah. According to him, the plaintiff therein was entitled to sprinkle sandal-wood water (PANEER) on the Tomb of the Saint and clean it. The Sandal Ceremony means that the persons performing the Pooja to the Samadhi (Tomb) of the Saint will bring Sandal-wood paste, perfumes, etc., and then apply Sandal-wood paste to the Samadhi of the Saint and perform Pooja using the other articles. Therefore the question that fell for consideration in the previous suit in O.S.No.285 of 1960 was whether the plaintiff therein was entitled to perform Sandal Ceremony in the suit Dargah or not. In the present suit there is no dispute regarding the right of the first defendant in the present suit to perform Sandal Ceremony. The dispute in the present suit relates to the timings during which the first defendant and his family members can perform the said Sandal Ceremony in the suit Dargah on the day of annual Urs. The timings during which the first defendant and his family members can perform Sandal Ceremony in the suit Dargah did not at all fall for consideration and determination in the previous suit in O.S.No.285 of 1960. It may be that in the plaint as well as during the course of evidence the plaintiff and the witnesses examined by him narrated the manner in which the Sandal Ceremony being performed by the plaintiff therein would take place.They stated that the plaintiff therein and his family members would start in a procession from the house of the plaintiff at about 11.00 p.m. and they are followed by their disciples and others and all of them would reach the suit Dargah.Then the first defendant and his family members would perform the Sandal Ceremony in the suit Dargah. According to the evidence adduced by them the Sandal Ceremony being performed by the plaintiff and his family members therein would be over around 2.00 a.m. In the previous suit there was no specific plea and consequential issue regarding the timings during which plaintiff and his family members therein could perform the Sandal Ceremony in the suit Dargah on the day of annual Urs. In that regard, no relief was also sought for. No finding was given in the said suit that the plaintiff therein and his family members are entitled to perform Sandal Ceremony in the suit Dargah from 11.00 p.m. up to 2.00 a.m. on the day of annual Urs. As already noticed, in the present suit the only dispute related to the timings during which the first defendant and his family members could perform the Sandal Ceremony in the suit Dargah. According to the plaintiff in the present suit, the first defendant and his family members could perform the ceremony only between 11.00 p.m. and 12.00 midnight and not at any other time. The contest of the first defendant in the present suit is that first defendant and his family members are entitled to perform Sandal Ceremony from 11.00 p.m. to 2.00 a.m. on the day of annual Urs. I am, therefore, of the clear opinion that the finding of the two courts below regarding the plea of res judicata is liable to be set aside. I, therefore, hold this point in favour of the appellants and against the respondents.
7. POINT NO.II: Some of the contesting parties in the lower appellate court entered into an agreement and compromised the suit among themselves. They filed a petition under Order XXIII Rule 3 C.P.C., requesting the trial court to record the compromise and dispose of the appeal in terms of the compromise. The lower appellate court enquired the parties to the compromise petition and satisfied itself that the parties entered into compromise. It recorded the compromise. However, it declined to pass a decree in the appeal in terms of the compromise entered into between the parties concerned.It gave certain reasons for not passing a decree in terms of the compromise. The main reason given by the lower appellate court is that as the suit is barred by res judicata, the parties are not entitled to compromise to get rid of the adverse findings of the courts given in the judgments in Exs.B1 and B.2. This ground falls to the ground in view of the finding given by me now that the present suit is not barred by the principle of res judicata. Even otherwise there is no law prohibiting any of the parties in entering into any compromise, the terms of which are against any decision given earlier by any competent court between the parties concerned. I propose to give an illustration. 'A' obtains a money decree against 'B'. It does not mean that subsequent to the decree 'A' is not entitled to give up his rights in the decree in question and waive his right to execute the decree and realise from 'B' the amount due to him under the decree in question. There is no law to force 'A' to execute the decree and realise the amount due to him under the decree.
8. The reason given by the lower appellate court is that there is a collusion between the second appellant and the respondents-defendants compromising with the second appellant therein. Any lawful compromise or agreement between the parties cannot be termed as a collusion and on that ground, the court is not entitled to record the lawful agreement or compromise and pass a decree in terms of the said agreement or compromise between the parties concerned. Under the provisions of Order XXIII Rule 3 C.P.C., the court can refuse to pass a decree in terms of the compromise only if it comes to the conclusion that the said agreement or compromise is not lawful. Explanation to Order XXIII Rule 3 C.P.C., makes it clear that an agreement or compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the said Rule. No provision in the Indian Contract Act is brought to the notice of this court indicating that the compromise entered into between the parties in the appeal before the lower appellate court is void or voidable.
9. Another reason given by the lower appellate court is that the compromise would affect the rights of the other contesting defendants in the suit. There is no force in the said reason. The previous suit was filed for declaration that the plaintiff and his family members therein are entitled to perform First Sandal Ceremony in the suit Dargah on the day of annual Urs. Somehow or other the lower appellate court came to the wrong conclusion that in the previous suit a declaration was given not only regarding the rights of the plaintiff and his family members therein but also regarding the rights of the disciples and other followers of the plaintiff therein. In Ex.B.2 judgment at page 26 the relief claimed in the suit as per the plaint was extracted. It reads as follows:
" The plaintiff therefore prays that (a) it be declared that the plaintiff and the members of his family have the exclusive right to perform the 1st Sandal ceremony in according with mamul during the annual Urs held for Penukonda Darga ................"
The said judgment further discloses that while passing the decree, the trial court omitted certain words mentioned in the relief para.An application was filed in the trial court during the pendency of the appeal before the District Judge to amend the decree. The said petition under Section 152 C.P.C., was dismissed by the trial court on the ground that the appeal was already pending before the appellate court. The appellate court refused to pass amended decree. This court in the second appeal directed a proper decree to be framed in accordance with the judgment of the trial court as confirmed by this court in the second appeal. Therefore, the declaration given in the previous suit relates to the plaintiff therein and the members of his family regarding their exclusive right to perform First Sandal Ceremony in the suit Dargah. No declaration was given in the said suit to the effect that the disciples and other followers of the plaintiff therein have also exclusive right to perform the First Sandal Ceremony in the suit Dargah. There is a lot of difference between the right of the plaintiff therein to take along with him his disciples and other followers at the time he and his family members performing First Sandal Ceremony in the suit Dargah and the right of the disciples and other followers of plaintiff therein to perform First Sandal Ceremony in the suit Dargah in their own right. It is also to be made clear that in the present suit except the first defendant and his family members, the other defendants did not take the plea that they have got a right in their own individual capacity to perform First Sandal Ceremony in the suit Dargah on the day of annual Urs. The first defendant in the present suit asserted the rights of himself and his family members to perform First Sandal Ceremony in the suit Dargah. What the other defendants did in the suit is to support the said claim of the first defendant and his family members. Their support and conduct do not amount or mean that they are claiming an independent right for themselves to perform First Sandal Ceremony either between 11.00 p.m. and 12.00 midnight or between 11.00 p.m. and 2.00 a.m.The lower appellate court failed to notice this clear distinction while disposing of the appeal pending before it.
10. The learned counsel for the appellants relied upon three decisions in support of his contention that the lower appellate court is bound to record the compromise entered into between the contesting parties. The Privy Council in a decision in SOURENDRA NATH Vs. TARUBALA DASI (1) held that whenever it was established that the suit had been adjusted either wholly or in part by a lawful compromise, it was the duty of the court to record the agreement and pass a decree in accordance therewith.
11. The Supreme Court of India in a decision in SILVER S. ENTERPRISES Vs. DEVKI NANDAN(2) held that the provisions in Order XXIII Rule 3 C.P.C., is mandatory and the court shall order such valid agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to that suit. The Supreme Court categorically held that this is a mandatory provision.
12. The Supreme Court in another decision in ROSHAN LALVs. MADAN LAL (3) held that whenever it considers that the agreement regarding compromise is lawful, the court is bound to record compromise and pass a decree in accordance therewith.
(1) AIR 1930 PC 158.
(2) .
(3) .
have already pointed out supra that it is not shown to me that the compromise entered into between the parties is not a lawful agreement.
13. The learned counsel for the respondents relied upon two decisions contending that no decree can be passed in terms of the compromise entered into between the parties concerned. This court in a decision in V. NARASIMHA RAJU Vs. K. YELLAMANDA(4) held that if the consideration of the object of an agreement is not lawful and if it is fraudulent or involves or implies injury to the person or property of another, the said contract is unlawful and is consequently void and therefore decree cannot be passed in view of the compromise. The above principle of law has no application to the facts on hand.
14. Another decision relied upon is a decision of A.P. High Court in B.D.M. RAO Vs. CO-OP. INDUSTRIES ESTATES(5) wherein it was held that recording of compromise is not purely a formal matter and a court making a decree by consent would be performing a judicial and not a ministerial act. . In that case two advocates for both parties filed a compromise memo before the (4) .
(5) AIR 1970 AP 308.
Court.The compromise memo was not signed by either of the parties. The advocates who signed the compromise memo had no special vakalat in their favour which empowers them to enter into a compromise on behalf of their clients. Therefore, the above decision has no application to the facts on hand. For all the reasons stated above, I hold this point in favour of the appellants and against the respondents.
15. Now a decree is to be passed in accordance with the compromise recorded by the lower appellate court between the parties to the compromise. Some of the respondents in the appeal before the lower appellate court are not parties to the compromise petition. Therefore, it becomes necessary for this court to remit back the appeal to the lower appellate court with a direction to pass a decree in terms of the compromise between the parties to the compromise petition. After passing such a consent decree in accordance with the compromise, the lower court has to dispose of the appeal regarding the other respondents on merits.
16. In the result, this appeal is allowed. The decree and judgment in A.S.No.44 of 1988 are set aside. The said appeal is remitted to the Court of Additional District Judge, Hindupur. The said court is directed to pass a decree in terms of the compromise between the parties to the compromise petition. Thereafter it shall dispose of the appeal regarding the other respondents in the appeal on merits keeping in view the observations made and findings given by this court in this appeal. Both parties shall bear their own costs in the present appeal.