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Sher Nabi Chaman vs M S Sharma & Ors on 11 September, 2017 cites

Martin & Harris Limited vs With Additional Distt. Judge & Ors on 11 December, 1997

12. The first argument urged on behalf of the respondent no.1/plaintiff/applicant/review petitioner that a consent order can be recalled, more so because no benefit is taken of the same by the respondent no.1/plaintiff/applicant/review petitioner, is an argument without any merit whatsoever for the reason that in the subject application, it is nowhere the case of the respondent no.1/plaintiff/applicant/review petitioner that the consent was not given. Giving or not giving of consent is a factual aspect and once that factual aspect is not sought to be recalled, it is therefore a fact that consent was indeed given for passing of the order dated 07.11.2014. Therefore, a consent order cannot be recalled unless and until the consent is based on a concession which is not in accordance with the law and which is not the position here. Also, it is relevant to note that if a legal CM(M) No.987/2017 Page 17 of 23 proceeding creates rights which can be waived then waiver of such rights would not mean that the consent given is against the law. Reference in this behalf can be made to the judgment of the Supreme Court in the case of Martin & Harris Ltd. Vs. VIth Additional Distt. Judge & Ors. (1998) 1 SCC 732, wherein the Supreme Court has observed that there cannot be estoppel against the law only if the legal provision is one which is not capable of being waived, but if the legal provision is with respect to a matter of private interest, such a private interest can always be waived ie only matters of public policy and pubic interest comprised in a statute cannot be waived but private interest can always be waived. Therefore, an entitlement to file objections to a demarcation report, being the private right of the respondent no.1/plaintiff/applicant/review petitioner, can and could always have been waived by the respondent no.1/plaintiff/applicant/review petitioner, more so in the facts of the present case where the respondent no.1/plaintiff/applicant/review petitioner claims no rights whatsoever on the land comprising in khasra nos.976 min., 977 min., 978 min. and 979 min. of village Mandoli and only claims rights in khasra nos.22/3, 22/4, 22/8, 22/9 and 25/20/2 of village Mandoli.
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