In order to avoid this situation, it appears that the remaining
Plaintiffs sought deletion of the name of Respondent no.1 and other
Plaintiffs and accordingly that was permitted. It is obvious that
name of Plaintiff No.6 i.e. present Respondent no.1 could not have
been allowed to be deleted without his consent. In case majority
demanded that his name should be deleted, & if he was not acting as
per wish of majority, at the most a step to transpose him as
Defendant could have been taken. In that event the trial Court
would have been required to find out nature of his grievances. Suit
could have been split into two Suits. All this exercise is not
undertaken by the trial Court. The Suit instituted by several Plaintiffs
deleting name of Respondent no.1.
as per Order I Rule 1 and 2 C.P
.C. could not have been disposed of by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
APPEAL FROM ORDER NO.799 of 2008
Ramesh Balaji Ekhande ...
Vs
Namdeo Ganpat Gite
CORAM : B.P
.DHARMADHIKARI, J
DATE: 17 October,
th
2012
Heard Mr.Thorat learned Counsel for the Appellant and
Mr.Nighot for Respondent No.1.
2.
A short contention of Advocate Thorat on behalf of the
Appellant (Original Plaintiff No.5) is that the impugned Judgment
dated 17.3.2008 passed by the District Judge 3 Nasik in Civil Appeal
No. 125 of 1996 remitting the controversy back to the trial Court is
perverse and shows total nonapplication of mind. He submits that
the Appeal arises out Special Civil Suit No.57 of 1990 which has
been disposed of finally on 1.2.1996 after recording of compromise.
Thus, against the compromise decree Regular Civil Appeal was not
maintainable. He has taken the Court through the relevant
provisions to substantiate his contentions. In alternative and only to
demonstrate that the controversy is now rendered infructuous and
remand is only an empty formality, he has also invited attention of
the Court to necessary facts.
3.
Learned counsel Nighot has submitted that Respondent No.1
is one of the Plaintiffs and Suit has been disposed of as compromised
without consent of Respondent no.1 and after deleting him from the
array of parties. His contention therefore is that decree in Suit is not
a Consent Decree so far as Respondent No.1 is concerned and as the
name of Respondent no.1 has been deleted from the array of parties
as Original Plaintiff impliedly his grievance has been dismissed
without giving him necessary opportunity. He therefore, submits that
even on that account, order of remand should not be interfered with.
4. The Suit was instituted by the proposed Cooperative Housing
Society through its Promoter and the aspirant members for Specific
performance. There was an Agreement entered into by the land
owner with the Promoter and members on 31.3.1987 and out of total
consideration of Rs.50,000/, initially an amount of Rs.30,000/ was
paid & on 8.4.1987, an amount of Rs.10,000/ was also paid. A
dispute arose and therefore on 15.2.1990 Special Civil Suit No.57 of
1990 came to be filed by the Plaintiffs jointly along with proposed
Cooperative Housing Society seeking specific performance of that
contract. During pendency of the Suit on 15.10.1995 the proposed
Society has passed a Resolution and it decided to prosecute the Suit
and for that purpose gave Power of Attorney to one of the Plaintiffs
who is the Appellant before this Court. Earlier, said Power of
Attorney was with Respondent no.1. Here it needs to be noted that
Respondent no.1 here contends that his Power of Attorney has not
been terminated and he is also disputing the fact of passing of
Resolution on 15.10.1995. However, these facts are not relevant at
this stage for adjudication of the present A.O. Hence, no conclusive
findings on these aspects need to be recorded.
5. On 21.12.1995 Plaintiffs filed an Application seeking deletion
of the name of present Respondent No.1 as Plaintiff no.1 from the
array of parties. They pointed out that the Resolution mentioned
above and Power of Attorney executed in favour of present Appellant
and also demand of additional amount of Rs,18,000/ from each
member and its nonfulfillment by Respondent no.1. The trial Court
has allowed that deletion and on the very same day Purshis for
Compromise was also filed. The said Purshis was also opposed by
present Respondent no.1 by filing purshis at Exhibit 73.
6. According to Respondent no.1 deletion was sought on the
ground that he had resigned but, no document to substantiate such
resignation or its acceptance by any Resolution was filed. On
15.1.1997 Respondent no.1 sought his restoration back as Plaintiff
but, that was rejected by an Order dated 25.1.1996. The Respondent
no.1 then sought stay of that order. But that was also rejected and
after all these developments on 1.2.1996 compromise came to be
recorded.
7. Appeal filed by the Respondent No.1/Original Plaintiff
challenging the decree passed in Special Civil Suit is under section
96 of C.P
.C. in this background. The Appellate Court has allowed that
before trial Court.
ig
Appeal on 17.3.2008 by the impugned order and placed matter back
8. A perusal of the impugned Judgment reveals the points framed
by the Appellate Court for its consideration and its determination is
as under :
Points
Findings
1.Whether the impugned compromise decree Yes
was obtained by fraud and collusion as alleged?
2.Whether this is a fit case to remit back ?
Yes
3.What order ?
See final order
9. The Appellate Court has noticed that Plaintiff No. 5 claiming to
be the General Power of Attorney Holder had filed an Application at
Exhibit 67 under Order 6 Rule 17 C.P
.C. on 21.12.1995 and while
seeking leave to amend the pleadings also sought deletion of names
of original Plaintiff Nos.1,6,8,12,18,19,26 and 31 under the pretext
that they had all resigned. Plaintiff no.6 is present Respondent no.1.
The Appellate Court had noticed the grievance that without calling
for the say of concerned Plaintiff, the trial Court called for say by the
Defendants and then Defendants' Counsel gave no objection and and
because of that no objection, amendment was allowed on 21.9.1998
itself. It has then noted that Compromise Purshis was also filed on
that day. It noted the contention of present Appellant that he had
Power of Attorney and its attention was also called to a resolution
passed by the General body. The Appellant before the lower
Appellate Court has informed there was no such reference to
resignation in Resolution produced. It has then recorded its reasons
for allowing the Appeal and remitting the matter back to the trial
Court.
10. The scope of the Appeal from Order is very limited and the
parameters to be applied are akin to one under section 100 of C.P
.C.
The Suit was filed jointly by several Plaintiffs. The proposed
Cooperating Housing Society who was joined as Plaintiff no.1 in that
Suit is even today is only proposed Housing Society. It has therefore
not become a legal person at all. It appears that for the said purpose
to avoid any technical objection as it could have been otherwise a
Suit by an unregistered Association of persons,the proposed
members of the Cooperative housing society were also joined as
Plaintiffs in individual capacity. The Plaintiffs therefore were
distinctly interested in reliefs to be granted by the trial Court. The
consideration of the Appellate Court shows that the Suit has been
disposed of by the trial Court as compromised after deleting names
of some of the Plaintiffs at the instance of remaining Plaintiffs. When
there was no legal person in existence, the Power of attorney
executed in favour of one of the Plaintiff by others or then steps
taken by some of the Plaintiffs could not have been presumed to be
valid against Plaintiffs who were opposing such steps.
11. The trial Court could have at the most disposed of the part of
grievances of Plaintiffs as compromised and the entire grievances in
Suit could not have been disposed of.
12. In order to avoid this situation, it appears that the remaining
Plaintiffs sought deletion of the name of Respondent no.1 and other
Plaintiffs and accordingly that was permitted. It is obvious that
name of Plaintiff No.6 i.e. present Respondent no.1 could not have
been allowed to be deleted without his consent. In case majority
demanded that his name should be deleted, & if he was not acting as
per wish of majority, at the most a step to transpose him as
Defendant could have been taken. In that event the trial Court
would have been required to find out nature of his grievances. Suit
could have been split into two Suits. All this exercise is not
undertaken by the trial Court. The Suit instituted by several Plaintiffs
deleting name of Respondent no.1.
as per Order I Rule 1 and 2 C.P
.C. could not have been disposed of by
13. In view of this position, I do not see any jurisdictional error or
perversity in the approach of the Appellate Court. The Appellate
court has rightly remitted the matter back to the trial Court for its
proper consideration. Various questions which arose because of
It is also apparent that in this situation act of the trial Court in
14.
deletion as sought need to be addressed to by the trial Court itself.
dismissing Suit of the Plaintiff indirectly because of compromise
entered into by other Plaintiffs with landlord cannot be sustained.
The Respondent no.1 (Plaintiff no.6) was not a willing party to
compromise. This is also apparent from the Application moved by
him on 25.1.1996 vide Exhibit 77 and 80. The decree passed by the
trial Court therefore, cannot be presumed to be a Consent decree
against which an Appeal is barred under section 96 (3) of C.P
.C. The
said subsection prohibits Appeal from decree which is passed by the
trial Court “with Consent of the parties”. Here, Respondent no.1 has
not given any such consent and at the time of passing of decree he
was not party to the Suit and therefore this bar is not relevant.
15.
Mr.Thorat in order to substantiate his stand had also invited
attention to provisions of Order 43 Rule 1 of C P However, it
.C.
appears that before 1976 Amendment to C.P
.C. an Appeal against the
order of trial Court recording compromise was permitted. By 1976
amendment that clause has been deleted. Because of that deletion
only simultaneously Rule 1A has been added and in it the Law has
permitted nonappealable orders to be challenged when a
substantive Appeal is filed against a decree. By way of further
clarification there is subrule 2 which envisages Appeal against
ig
decree passed in Suit after recording of compromise. In such an
Appeal the Appellant is permitted to contest the decree on the
ground that compromise should not have been recorded. Therefore,
it clearly shows that Appeal filed by the Respondent no.1 under
section 96 of CPC was legally tenable and has been rightly
entertained by that Court. The Appeal was against a decree passed
in Suit after recording of compromise and he contested the decree on
the ground that compromise should not have been recorded.
16. In this situation as the matter has been rightly remanded back
by the Appellate Court to the trial Court for its proper consideration,
I find that no prejudice is caused to the parties.
17. During hearing, my attention has been invited to Order passed
by the Appellate Court on 19.11.1997 directing the Respondents
before it (Plaintiffs) to keep one plot reserved for Respondent no.1.
This direction held the field till the Appeal was decided and matter
was remanded back. Mr.Nighot submitted that even today plot is
vacant and kept reserved for the present Respondent no.1. Whether
the plot is available or not is not very relevant at this stage. The lis
presented before the trial Court in the year 1999 still survives and
need to be answered either way. It cannot therefore be said that due
to passage of time the controversy is rendered infructuous. Remand
therefore, cannot be said to be an empty formality. No case is made
out warranting interference by this Court. Appeal from Order
rejected.
18. The Appellate Court has expedited the proceedings after
remand. The time period prescribed therein shall begin to run after
this Judgment is communicated to the trial Court.
19. Parties before this Court are directed to appear before the trial
Court on 26.11.2012.
Pending C.As disposed of as redundant.
(B. P
. Dharmadhikari, J)
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