IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O. O. C. J.
APPEAL NO.51 OF 2013
IN
NOTICE OF MOTION NO.201 OF 2012
IN
TRUST PETITION NO.1 OF 2001
WITH
NOTICE OF MOTION NO.773 OF 2013
Kiran Narottamdas Merchant.
...Appellant.
Vs.
Ravindra Narottamdas Merchant & Ors.
CORAM : DR.D.Y.CHANDRACHUD AND
S.C.GUPTE, JJ.
June 27, 2013.
Admit. By consent of Counsel and at their request, taken up for
hearing and final disposal.
2.
The appeal arises from an order of a Learned Single Judge, dated
23 November 2012 on a motion that was taken out in a Trust Petition. The
Appellant and the First Respondent are brothers. The Second Respondent is
their mother, while the Third, Fourth and Fifth Respondents are their sisters.
The Trust Petition has been instituted by the First Respondent inter alia for
the distribution of the Trust properties in equal proportion between the
Appellant and the First Respondent, who are the two beneficiaries named in
the Deed of Trust.
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The Petition came up for hearing before a Learned Single Judge.
3.
app51.13-27.6
On 5 August 2005, Mr.Justice S.U. Kamdar dictated, in the presence of the
parties and their Counsel, terms of settlement. A Chamber Summons had
been moved before the Learned Single Judge by the mother and the three
sisters for impleadment. On 5 August 2005, the Learned Single Judge, by
consent of parties allowed the impleadment of the three sisters and directed
the First Respondent to amend the suit which was to be heard together with
the Trust Petition. In order to bring clarity to the controversy in the appeal, it
ig
would be necessary for the Court to make a reference to the following facts
which have been admitted during the course of the hearing:
The Consent Terms which were dictated by the Learned Single
(i)
Judge on 5 August 2005 were initialed by the parties at the foot of every page
and parties signed the Consent Terms together with their Advocates at the
foot thereof;
(ii)
On 5 August 2005, the Learned Judge did not sign an order
disposing of the Trust Petition in terms of the Consent Terms. In fact, the
record of the case was inspected by Counsel and there is no order of the
Single Judge disposing of the Trust Petition;
(iii)
In contrast to (ii) above, there is an order duly passed and signed
on 5 August 2005, allowing impleadment of the sisters;
(iv)
The original Consent Terms dictated by the Single Judge contain
a large number of hand written corrections and include riders;
(v)
After the Consent Terms had been initialed by the parties and by
their Advocates, a fresh typed copy was placed on the record. The fresh copy
was, however, not signed by the First Respondent or his Advocate.
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4.
On 8 March 2006, on a motion for recalling, the Learned Trial
Judge was moved for stay of 'the order' dated 5 August 2005. The Learned
Judge declined to grant an ad-interim stay on the ground that on 5 August
2005, a consent order had been passed.
On 7 April 2006, the Learned
Judge directed each of the Counsel who had appeared in the matter to file
their affidavits about what transpired in Court on 5 August 2005 and on the
previous date, namely, 3 August 2005. On 21 April 2006, the Learned Judge
ig
held that the First Respondent “has signed the said consent order as consent
order between the parties” and issued a notice to show cause as to why
action should not be initiated under the Contempt of Courts Act. The orders
dated 8 March 2006, 7 April 2006 and 21 April 2006 were passed by the
Learned Judge in a motion which was taken out by the First Respondent for
recalling the order dated 5 August 2005.
The motion proceeded on the
footing that there was an order of the Court dated 5 August 2005. The motion
was dismissed by Smt. R.S. Dalvi, J. on 23 January 2007 against which the
First Respondent filed an appeal. In the meantime, S.U.Kamdar, J. demitted
office.
5.
The appeal was disposed of on 21 November 2011 by the Division
Bench with the following order which was passed by consent of parties:
“
At the hearing and final disposal of the appeal,
Learned Senior Counsel appearing on behalf of the Appellant and
the Second Respondent and Counsel appearing on behalf of the
First, Third, Fourth and Fifth Respondents have agreed that the
following order may be passed with the consent of all the Learned
Counsel and the parties without any further reasons being
recorded :
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1)
The impugned order of the Learned Single Judge
dated 23 January 2007 in Notice of Motion 668 of 2006 is set
aside;
2)
Notice of Motion 668 of 2006 does not survive since it
is common ground between the Learned Counsel on perusing the
record that there is no signed or initialed order of the Learned
Single Judge dated 5 August 2005;
ig
3)
However, liberty is granted to the Respondents to
adopt suitable proceedings in accordance with law before the
Learned Single Judge. All the rights and contentions of the
parties, should an application be taken out, are kept open to be
urged before and for decision by the Learned Single Judge;
4)
The appeal is accordingly disposed of since no other
points are pressed on either side;
5)
In the event that any of the parties applies for copies
of the documents which appear in the record of the Court, such
copies shall be supplied on payment of usual charges.
6.
The Appeal is disposed of by consent in these terms.
No order as to costs.” (emphasis supplied)
The order which was passed by the Division Bench on 21
November 2011, it is common ground, was after parties and their Counsel
had inspected the original record before the Court, including the Minutes
Book. The Minutes Book has again been inspected during the course of the
hearing of the present appeal and it is now an undisputed position that
Consent Terms were dictated by S.U. Kamdar, J. on 5 August 2005 and were
initialed by the parties at the foot of every page and signed by the parties and
their Counsel at the end. However, the record does not contain a signed or
initialed order of the Learned
Judge dated 5 August 2005.
Since it is
common ground that the Learned Judge had not either signed or initialed an
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order on 5 August 2005, the motion which was taken out by the First
Respondent for recalling “the order dated 5 August 2005” was held not to
survive, by consent. As a consequence, the order of Learned Judge dated 23
January 2007 dismissing the motion was set aside. At the same time, liberty
was granted to the Appellant to adopt suitable proceedings in accordance with
law before the Learned Judge and all rights and contentions of the parties
were kept open.
Following the order of the Division Bench dated 21 November
ig
7.
2011, a motion was taken out for the following reliefs:
“a) That this Hon'ble Court be pleased to call for the records which
contain the original order dated 5 August 2005 as passed by His
Lordship Justice S.U.Kamdar (as he then was) and affix the
signature on the same;
b) In the alternative this Hon'ble Court may take on record the
agreements that are signed by the parties and their respective
counsel appearing at the relevant time on their behalf as a
compromise/agreement and an order/decree be passed in terms
of the same.”
Counsel appearing on behalf of the Appellant submits that prayer (a)
proceeded on the basis that what was dictated by the Learned Judge on 5
August 2005, namely, the terms of settlement constitutes a judgment within
the meaning of Order 20 Rule 8 of the Code of Civil Procedure, 1908 and
since the Learned Judge had while pronouncing the judgment inadvertently
not signed it, and has since demitted office as Judge of this Court, it is open to
a successor Judge to affix his signature thereon.
Prayer (b) which is in the
alternative, it has been submitted, proceeds on the basis that in the event that
prayer (a) is not granted, the terms of the settlement as arrived at between
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the parties on 5 August 2005 would constitute a compromise within the
meaning of Order 23 Rule 3 of the Code of Civil Procedure, 1908 and that the
Learned Trial Judge should record the compromise. The motion was heard
by Mr.Justice Anoop V.Mohta. The Appellant who had moved the motion did
not lead any evidence in support either of the principal prayer or on the
alternate prayer for recording a compromise under Order 23 Rule 3. The
Learned Judge by a judgment dated 23 November 2012, dismissed the
ig
motion. The order is now impugned in the appeal.
8.
For convenience of exposition, it would be appropriate to deal with
the two prayers that were sought in the motion separately, particularly since
prayer (b) of the motion was set up in the alternative.
Prayer (a) :
9.
Counsel appearing on behalf of the Appellant submits that: (i) A
judgment to which parties have agreed constitutes a contract between the
parties and binds the parties as fully as a judgment rendered upon
adjudication; (ii) S.U. Kamdar, J. had by sheer inadvertence failed to affix his
signature on the order dated 5 August 2005 which was an order of the Court
passed with the consent of the parties. As a matter of fact, the same Learned
Judge so construed his earlier order subsequently on 8 March 2006, 7 April
2006 and 21 April 2006; (iii) As a matter of fact, the Registrar proceeded to
issue a certified copy and the consent order was uploaded on the website of
the High Court and the decree was drawn up in accordance with the Original
Side Rules following which, a Judge's Order was passed for executing the
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decree by taking possession of the first floor of the building from the Second
Respondent. According to the Appellant, the judgment has been pronounced
by the Learned Judge on 5 August 2005, but since the Learned Judge
inadvertently omitted to sign his judgment until he demitted office, it would be
open to the successor Judge to sign the order dated 5 August 2005.
Learned Senior Counsel for the First Respondent submits that:
(i) For Order 20 Rule 8 of the Code of Civil Procedure, 1908, to apply
10.
ig
there must be a judgment within the meaning of Section 2(9);
(ii)
Inspection of the record by all the Counsel during the hearing of
the earlier appeal and in the present proceedings reveals that there is no
judgment and order of the Learned Judge dated 5 August 2005;
The position is abundantly clear from the consent order dated 21
(iii)
November 2011 in the earlier appeal;
(iv)
There being no judgment pronounced, Order 20 Rule 8 has no
application;
(v)
Ordinarily, parties prepare and execute Consent Terms. The fact
that S.U.Kamdar, J. dictated the consent terms does not alter their character.
11.
At the outset, it would be necessary to note that under Section
122 of the Code of Civil Procedure, 1908, the High Courts are empowered to
frame rules regulating their own procedure and the procedure of the Civil
Courts subject to their superintendence and are empowered by such rules to
annul or alter or add to all or any of the rules made under the First Schedule.
Section 129 provides that notwithstanding anything contained in the Code,
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any High Court may make rules not inconsistent with the Letters Patent or
order or other law establishing it, to regulate its own procedure in the exercise
of its original civil jurisdiction. Order 49 provides in Rule 3 that Rules 1 to 8 of
Order 20 shall not apply to any Chartered High Court in the exercise of its
ordinary or extraordinary original civil jurisdiction. The rules which have been
framed by this Court provide inter alia in Rule 296 for judgment. Under clause
(i) of Rule 296, the judgment has to be pronounced in open Court and a
minute made thereof by the officer attending in Court. Clause (ii) of Rule 296
ig
provides as follows :
“(ii) A judgment delivered by the Court, when initialed by the
Judge pronouncing it, either on the transcript of the Judgment or
on the approval sheet attached to it, shall be final Judgment of
which copies could be supplied to the parties or their Advocates,
unless the Judge delivering it desires that he wants to have a fair
copy of the Judgment for approval. In the latter event, the
Judgment shall be considered to be final when the fair copy is
approved and initialed by the Judge.”
Rule 298 provides for the contents of the decree. Rule 300 provides that a
decree shall be drawn up by the party initiating the proceeding, unless the
Court otherwise directs and such a party shall lodge the draft of the decree in
the office of the Prothonotary and Senior Master for settlement of the draft.
The Prothonotary and Senior Master is thereupon authorised to check and
make alterations in the draft as are considered necessary and warranted.
Decrees or orders passed in Court are signed by the Prothonotary and Senior
Master and sealed with the seal of the Court.
Rule 300 lays down the
procedure for the Prothonotary and Senior Master for settling the draft
including for the hearing of objections from the parties.
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12.
For the purposes of the present appeal, Counsel for the parties
have proceeded on the basis that the provisions of Order 20 Rules 1 to 8
would at least furnish guiding principles on the basis of which, this Court in
the exercise of its ordinary original civil jurisdiction would be entitled to
proceed. Order 20 Rule 1 requires the Court, after the case has been heard,
to pronounce judgment in an open Court, either at once, or soon thereafter as
Sub-rule (3) stipulates that the judgment may be
may be practicable.
ig
pronounced by dictation in open Court to a shorthand writer if the Judge is
specially empowered by the High Court in this behalf. Under the proviso,
where the judgment is pronounced by dictation in open Court, the transcript of
the judgment so pronounced shall, after making such corrections therein as
may be necessary, be signed by the Judge, bear the date on which it was
pronounced, and form a part of the record. Rule 3 provides that the judgment
shall be dated and signed by the Judge in
open Court at the time of
pronouncing it and when once signed, shall not afterwards be altered or
added to, save as provided by Section 152 or on review.
Rules 6 and 7
prescribe the contents of the decree and the date of the decree. Rule 8
provides that where a Judge has vacated office after pronouncing judgment,
but without signing the decree, a decree drawn up in accordance with such
judgment may be signed by his successor or, if the Court has ceased to exist,
by the Judge of any Court to which such Court was subordinate.
13.
The expression “judgment” is defined by Section 2(9) to mean the
statement given by the Judge of the grounds of a decree or order.
The
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expression “decree” is defined in sub-section (2) of Section 2 to mean inter
alia the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit. The expression
“order” is defined in Section 2(14) to mean the formal expression of any
decision of a Civil Court which is not a decree.
The concept and consequence of a compromise decree was
14.
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considered in a judgment of the Madras High Court in Raja Kumara Venkata
Perumal Raja Bahadur vs. Thatha Ramasamy Chetty.1
A judgment by
consent of the parties constitutes more than a mere contract and is said to
have sanction of the Court. Consequently, a judgment by consent has all the
force and effect of any other judgment being conclusive as an estoppel upon
the parties. The jurisdiction and powers of the Court to pass a decree by
consent is, however, limited in the sense that the Court does not decide the
disputes between the parties, but only embodies the decision of the parties
and makes their decision as its own, giving it the force and solemnity of a
decision of the Court. This principle has subsequently been adopted by the
Supreme Court in Raja Sri Sailendra Narayanbhanja Deo vs. State of
Orissa.2
The same principle was enunciated subsequently in Byram
Pestonji Gariwala vs. Union Bank of India,3 where the Supreme Court held
that a consent decree binds the parties and is as effective an estoppel
between them. The same principle was followed by the Supreme Court in
1 1911 21 MLJ 709
2 AIR 1956 SC 346 at para 14
3 (1992) 1 SCC 31
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The principle of law is, hence, well settled.
Where the Court
15.
P.T.Thomas vs. Thomas Job.4
delivers or pronounces a judgment by consent, what the Court does in effect
is to place its imprimatur on a contractual arrangement between the parties.
The agreement between the parties which forms the foundation of the
judgment is a contract nonetheless like any other contract.
A judgment by
consent, therefore, binds the parties as effectively as a judgment delivered
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upon adjudication and hence, it has been held to constitute an estoppel as
between the parties.
16.
Now, the essential question which has to be determined in the
present case is whether there was on 5 August 2005 a judgment pronounced
by S.U.Kamdar, J.
Unless on that day, the Court had pronounced a
judgment, there was no occasion for the Appellant to claim that through an
inadvertent omission, the judgment had not been signed and that his
successor Judge would be entitled to sign it upon S.U.Kamdar, J. demitting
office. Now, it is clear on the basis of the record before the Court that what
took place before the Learned Judge on 5 August 2005 was that instead of
parties tendering Consent Terms to the Court as would normally happen
where parties desire to settle a dispute,
the Learned Judge himself
proceeded to dictate terms of settlement in the presence of the parties and
their Counsel.
The terms of settlement would, at the highest, constitute
Consent Terms between the parties (we adopt the expression 'at the highest'
4 (2005) 6 SCC 478
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because whether there was a compromise between the parties is a matter
which would be considered in the second limb of the judgment). But as a
matter of fact on 5 August 2005, there was no judgment rendered by the
Learned Judge. Since there was no judgment delivered or pronounced, there
would be no occasion to even contend that a successor Judge should sign
“the judgment”. The occasion for a successor Judge to sign a judgment which
has been pronounced by an earlier Judge, who had vacated office, arises
Unless a judgment has been
provided a judgment has been pronounced.
ig
pronounced by the predecessor, there would be no occasion to sign
something which has not been pronounced by an earlier Judge.
Consent
Terms by themselves never constitute a judgment. The terms themselves do
not contain within the meaning of Section 2(9) a statement by a Judge of the
grounds for the decree or order. That is for the simple reason that there is no
adjudication by the Court. In the present case, it is apparent from the record
before the Court, more particularly, the Minutes Book which has been
produced for inspection that though S.U.Kamdar, J. did sign an order on 5
August 2005 for the impleadment of the three sisters as parties to the suit,
there was no judgment delivered by him, nor for that matter, an order
pronounced by him in so far as the Consent Terms were concerned. In the
circumstances, the first prayer in the motion was misconceived and the
Learned Single Judge was justified in declining to grant prayer (a).
Prayer (b) :
17.
Prayer (b) before the Learned Single Judge proceeded on the
basis that parties and their Advocates had initialed every page of the Consent
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at the foot thereof.
Terms which were dictated by the Judge and had signed the Consent Terms
Prayer (b) in essence required the Court to record terms
1908.
18.
Order 23 Rule 3 provides as follows:
of the compromise under Order 23 Rule 3 of the Code of Civil Procedure,
ig
“3. Compromise of suit. - 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 signed 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 so far
as it relates to the parties to the suit, whether or not the subject-
matter of the agreement, compromise or satisfaction is the same
as the subject matter of the suit;
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.
Explanation.- An agreement or compromise which is
void or voidable under the Indian Contract Act, 1872 (9 of 1872),
shall not be deemed to be lawful within the meaning of this rule.”
The substantive part of the Order 23 Rule 3 requires the Court to order the
recording of a compromise 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 signed by the parties. The proviso to Rule 3 deals
with a situation where there is a dispute between the parties whether an
adjustment or satisfaction has been arrived at. The Court then has to decide
the question. In the present case, since there was a dispute between the
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Appellant on the one hand, and the First Respondent on the other, as to
whether a compromise had been arrived at between the parties, that issue fell
for determination before the Learned Single Judge under the proviso to Rule
3.
19.
Now, at the outset, it would be necessary to note certain factual
aspects which emerge from the record.
The Consent Terms which were
dictated by the Learned Single Judge on 5 August 2005 contained a large
Though, as noted earlier,
ig
number of alterations in hand, besides riders.
parties and their Advocates had initialed the Consent Terms at the foot of
every page and had signed them at the end, a fresh typed copy of the
Consent Terms was placed on the record which has not been signed by the
First Respondent and his Advocate. The explanation of the First Respondent
for not signing the fresh typed copy is contained in an affidavit dated 2 July
2012 that was filed before the Learned Single Judge in the motion out of
which the appeal arises. The relevant part of the affidavit would have to be
extracted:
“I deny categorically that I have signed any compromise or
settlement between the parties and further deny that there is any
agreement/compromise as contemplated in law between the
parties. I say that I had initialed each page of the draft order and
the affixing of my initials does not and do not in any manner
establish that I have consented to any of the statements made in
such draft order. I put my initials as I was asked to do so by my
counsel. I had not read nor understood the contents thereof. It is
pertinent to appreciate that so far as the handwritten
changes/corrections which are made in the draft order have not
been made by me or any other parties which corrections/changes
also were made only after I had initialed each page of the draft
order.
It is further pertinent to note that the various
changes/corrections which have been made have not been
independently initialed or acknowledged by me. As such, it
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cannot be contended that the document which has many hand
written changes/corrections which have not been acknowledged
and/or initialed by me is a valid or lawful compromise as
contemplated
by
law.
In
fact,
the
unconfirmed
changes/corrections made at various places in the alleged
agreement/compromise clearly establishes that the parties were
not ad idem on various issues. It is therefore clear that the basic
requirements of an agreement/compromise have
not been
satisfied. I repeat that the alterations and changes which were
later made in handwriting after I initialed each page of the draft
order – and the same have never been confirmed by or initialed
by me. I therefore deny that there is any agreement/compromise
in existence in fact or in law.” (emphasis supplied)
ig
The categoric averment of the First Respondent in the affidavit, in so far as is
material, is that hand written changes/corrections were made in the draft
order, after he had initialed each page of the order and that the
changes/corrections have not been independently initialed by him. During the
course of the hearing, Counsel appearing on behalf of the Appellant has fairly
stated, upon inspecting the record and on taking instructions, that this
statement in the affidavit dated 2 July 2012 was not controverted.
20.
But what is of equal significance is that S.U.Kamdar, J. had by an
order dated 7 April 2006 directed all Counsel who appeared on behalf of the
contesting parties to these proceedings to file individual affidavits in regard to
what transpired before the Court. A considerable amount of emphasis has
been placed on the affidavit which was filed by Mr.U.J.Makhija, the Advocate
who appeared on behalf of the First Respondent.
on that affidavit.
The Appellant has relied
Mr.Makhija in the course of his affidavit has made an
elaborate statement of what actually transpired in the proceedings before
S.U.Kamdar, J. On a material aspect, the affidavit states as follows:
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“4. The learned Judge suggested and the Petitioner agreed that
provision should have to be made for his mother who was then
residing on the 7th floor and he agreed to give the first floor
premises which were in his occupation to his mother for life.”
(emphasis supplied)
Now, the Consent Terms which were dictated by S.U.Kamdar, J. must be
read in juxtaposition, Clause 9 of the Consent Terms reads as follows:
ig
“9. In so far as the first floor of the building known as “Ravikiran”
is concerned the same will be an exclusive ownership of
Respondent No.1. i.e. the mother of the Petitioner and
Respondent No.2. She will be entitled to the first floor premises in
its entirety in a building known as Ravi Kiran and she will be
entitled to use, occupation and possession thereof as owner and
the Petitioner shall not have any objection whatsoever to her use,
occupation and possession of the said premises. In return
Respondent No.1 shall give up all her rights, title and interest if
any in the seventh and eighth floor of the said building known as
“Ravikiran”. Respondent No.1 also shall vacate and hand over
the possession of the said both 7th and 8th floor of the building to
the Petitioner herein. The said vacating of the premises of the 7 th
and 8th floor of the said building will be simultaneous with she
being put in possession of the first floor premises of the said
building. The Petitioner shall furnish the said premises reasonably
so as to make it habitable for Respondent No.1 keeping in mind
her needs before she is offered the same for her occupation and
possession.” (emphasis supplied)
The understanding of Counsel who appeared on behalf of the First
Respondent as stated in his affidavit is that the mother of the First
Respondent was to be given a life interest in respect of the first floor. The
Consent Terms, however, stipulate that rights of exclusive ownership would
be conferred upon her. This aspect assumes importance for the reason that
in the event of a dispute, under Rule 3 before the Court can record that the
suit has been adjusted by a lawful agreement or compromise, it must be
satisfied that parties were ad idem on what they were settling.
The
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understanding of Counsel who appeared on behalf of the First Respondent on
the nature of the settlement is in a material aspect at variance with the record
of the settlement as contained in the alleged Consent Terms. These were not
terms which were negotiated upon and agreed between the parties before
being tendered in court. The Learned Judge who was seized of the matter
dictated the terms and whether parties were ad idem on what they were
settling is hence of crucial importance. No evidence was led by the Appellant
on the motion under Order 23 Rule 3, once the question of whether there was
ig
an adjustment or satisfaction was disputed. This must be placed in balance
together with the fact that the terms contain a large number of additions in
hand as well as several riders. The statement on affidavit that these changes
were made after the First Respondent had initialed the foot of each page has
not been denied, a point which has been conceded by Counsel for the
Appellant after taking instructions. In the circumstances, and having given our
anxious consideration, we are of the view that the Learned Single Judge was
justified in declining to accede to prayer (b) for recording a compromise in
terms of the alleged Consent Terms dated 5 August 2005.
21.
For these reasons, we are unable to accede to the contentions
raised on behalf of the Appellant in support of the appeal. Before concluding,
we would wish to record that the appeal has been argued on both sides with a
considerable degree of candor and fairness to the Court and we have had
able assistance of Counsel on the basis of the record of the Court.
22.
The appeal is, therefore, dismissed.
There shall be no order as
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to costs.
In view of the dismissal of the appeal, the Notice of Motion in the
appeal does not survive and is hence, disposed of.
23.
( Dr.D.Y.Chandrachud, J.)
ig
( S.C.Gupte, J. )
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