1. Appeal From Order No.377 of 2010 has been filed by the appellants-original defendant Nos.2 to 9 while Appeal From Order No.378 of 2010 has been filed by the appellant-original defendant No.1 under Order XLIII Rule 1 of Code of Civil Procedure being aggrieved and dissatisfied by the judgment and order dated 18-11-2010 passed below Ex.5 by the learned 8th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No.685 of 2009 whereby injunction application Ex.5 filed by the present respondent Nos.1 and 2-original plaintiffs (hereinafter referred to as 'plaintiffs' for short) was granted.
2. Case in short as appearing from Appeal From Order No.377 of 2010 is that father of defendant No.1 had partitioned the hereditary properties between himself and his two sons vide partition deed dated 21-3-1970. Out of the properties of said partition deed, plaintiff No.2 was also entitled to certain properties while the present suit property had come to the share of defendant No.1. Case of the plaintiffs in the said civil suit was that after partition deed dated 21-3-1970, late father of defendant No.1 and plaintiff No.2 sold off their share of property to ensure smooth functioning of joint family. The plaintiff No.2's share of property was acquired by Gujarat Housing Board while that of defendant No.1 remained untouched. Further case was that as late father of defendant No.1 and plaintiff No.2 were having no property, the suit property which came to the share of defendant No.1 was partitioned into three parcels vide family deed dated 2-3-1972 in which each of the defendant No.1, plaintiff No.2 as well as late father of defendant No.1 was entitled to 1/3rd portion. Upon the death of late father of defendant No.1, his one-third share went to mother of defendant No.1 and plaintiff No.2 i.e. plaintiff No.1 herein. According to the defendant Nos.2 to 9, said alleged family deed dated 2-3- 1972 was not entered into revenue record while original partition deed dated 21-3-1970 was mutated in the revenue record and it remained till 1986. Defendant Nos.2 to 9 further state that in 1987, they preferred Regular Civil Suit No.794 of 1987 against the present defendant No.1 contending inter alia that plaintiffs therein were entitled to one-third share each in the suit property and the defendant No.1 herein was trying to sell off the entire property and, therefore, it was prayed to grant a declaration that plaintiffs therein were entitled to one-third share each. According to defendant Nos.2 to 9, said suit had been allowed ex-parte and decree was drawn on 31-11-1988 which was mutated in the revenue record on 5-5-1989. Thereafter, present defendant No.1 preferred Misc. Civil Appln.No.160 of 2000 on 20-7-2000 for recalling of said ex-parte decree and to decide it biparte. Ex-parte decree was recalled vide order dated 29-7-2000 and ultimately, parties entered into a “Karardad” dated 1-8-2000 based upon which, the learned trial court passed order on 11-8-2000 in which, both the deeds dated 21-3-1970 and 2-3-1972 were referred. Said order dated 11-8-2000 was entered in the revenue record. According to defendant Nos.2 to 9, in the decree dated 11-8-2000, the trial court passed final order whereby rights of the parties were directed to be governed by deed dated 21-3-1970 and earlier permanent injunction granted at Ex.1 was directed to be quashed and set aside. Defendant Nos.2 to 9 submit that on satisfying the title of the defendant No.1, they entered into a registered sale deed dated 1-10-2009 on payment of sale consideration of Rs.3,74,00,000/-. Therefore, a suit being Special Civil Suit No.685 of 2009 was filed by the present respondent Nos.1 to 2-original plaintiffs contending inter alia that land bearing Revenue Survey No.255 of Mouje Gorva, District Vadodara, in the joint ownership of plaintiffs and defendant Nos.1 was sold by the defendant No.1 to the defendant Nos.2 to 9 although he held only one-third portion of the said property and the balance two-third portion being of the plaintiffs. Therefore, by the present suit, the plaintiffs sought partition of the suit property by metes and bounds and to hand them over two-third portion of the suit property. They also prayed to quash and set aside the registered sale deed dated 1-10-2009 and sought a declaration that the said sale deed executed by defendant No.1 in favour of defendant Nos.2 to 9 qua 2/3rd portion is not binding on them. The plaintiffs also preferred an application for temporary injunction at Ex.5 seeking to restrain the defendant Nos.2 to 9 from transferring, assigning, selling, mortgaging, gifting, leasing or rending out the said property to any other person and from creating any further right. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, learned 8th Additional Senior Civil Judge, Vadodara, vide order dated 18-11-2010 granted interim injunction. Hence, the present Appeal From Orders.
3. Along with the appeals, Civil Application No.15677 of 2010 and Civil Application No.15777 of 2010 have been filed by the original defendant Nos.2 to 9 for stay of order dated 18-11-2010. This Court (Coram: K.S.Jhaveri,J.) vide order dated 15-2-1011 allowed those applications by passing the following order:
“
1. By way of present applications, the applicants have prayed for staying the execution, operation and implementation of the order dated 18th November 2010 in the respective appeals.
2. Heard learned advocates for the respective parties.
3. It is the case of the applicants that the original plaintiffs themselves had preferred Miscellaneous Application No.2 of 2010 inter alia contending that there was some error in the “Karardad” dated 10th August 2000 and due to the same, the decree and the order drawn by the Court dated 11th August 2000 also reflected the erroneous date and, therefore, the said application was preferred with a prayer for changing the date as “21st March 1970” instead of “02nd March 1972” in the decree as well as in the judgment. It is also the case of the applicants that the rights of the parties have been crystalized in the decree dated 11th August 2000 in Regular Civil Suit No.794 of 1987. It is also the case of the applicants as to whether the original plaintiffs are entitled to one-third share each in the suit property or not, is a subject matter which would be finalized upon the decision of Miscellaneous Application No.2 of 2010. Since no orders have been passed in the said Miscellaneous Application for review, the rights of the original plaintiffs have not been crystalized and thus, the trial Court has committed a serious error and the present application may be allowed accordingly.
4. Having considered the contentions raised by the learned advocates for the respective parties, averments made in the application and the documentary evidence produced on record, it transpires that by way of making the said application for review, merely a change in date is prayed for. However, looking to the facts and circumstances of the case, it transpires that the whole character of the judgment and decree is changed on account of the same. According to the decree as it stands today, the rights of the entire suit property is vested with the present respondent No.3, whereas the mere change of the date as prayed for by the original plaintiffs would lead to the original plaintiffs deriving one- third share each in the suit property. Thus, the trial Court while passing the impugned order has failed to appreciate that the review application would change the whole character of the consent decree.
4.1 It also transpires that the trial Court has tried to unsettle the decree, which has been settled and which has attained finality between the parties for the last about 10 years. It is required to be noted that unless that clarification is made by the trial Court in the review application, it was not appropriate for the trial Court to accept the rights of the original plaintiffs. It is pertinent to note that if ultimately the original plaintiffs succeed, the original plaintiffs will be paid their one-third in the suit property.
5. In view of aforesaid, both these applications are hereby allowed. The execution, implementation and operation of the order dated 18th November 2010 passed by the 8th Additional Senior Civil Judge, Vadodara, below application Exhibit 5 in Special Civil Suit No.685 of 2009, is hereby stayed, pending final disposal of the Appeal From Order. Applications stand disposed of accordingly.
At this stage, Mr.M.C. Bhatt, learned Senior Cousel for the respondent No.1, has prayed for staying the present order.
In view of aforesaid, I am of the opinion that the original plaintiffs have case in the eye of law. Hence, it will not be appropriate to extend the interim relief granted by the trial Court since the original plaintiffs have been granted adjournments for two times by this Court. It is required to be noted that today also the matter was argued at length. It is clarified that if ultimately the clarification is made, it will be open to the original plaintiffs to move an appropriate application.
In that view of the matter, the stay as prayed for by Mr.M.C.Bhatt, learned Senior Counsel, is refused.”
1. The aforesaid order was challenged before the Hon'ble Apex Court by way of Special Leave to Appeal (Civil) No.9849 of 2011 wherein following order has been passed by the Hon'ble Apex Court on 23-9-2011:
“We have heard learned counsel for the parties. Since the impugned order is virtually arising out of interlocutory determination by the High Court, we do not wish to interfere with the same.
We are informed by the counsel that two Appeals From Order Nos.377/2010 and 378/2010 are still pending with the High Court. In view of the circumstances, we request the High Court to expedite the hearing of these matters and dispose of them as early as possible preferably by 31st December, 2011. Learned counsel appearing for the parties submit that their respective clients will extend their cooperation to the High Court for speedy disposal without requesting for adjournments.
However, in the meanwhile, the parties are directed to maintain status quo as it is obtaining today.
We make it clear that we have not gone through the merits of the cases and the High Court shall consider the matters on their own merits without construing anything said in this order as an expression of opinion on the merits of those cases before the High Court.
The special leave petitions are accordingly disposed of.”
2. Heard learned Senior Advocate, Mr.S.I.Nanavati for original defendant Nos.1 to 9 with learned advocate, Mr.M.J.Mehta for the original defendant No.1 and learned advocate, Mr.Nikhil S.Kariel for the original defendant Nos.2 to 9 in Appeal From Order Nos.378 of 2010 and 377 of 2010 respectively, learned Senior Advocate, Mr.Mihir Thakore with learned advocate, Mr.R.D.Dave for original plaintiffs in Appeal From Order No.378 of 2010 and learned advocate, Mr.J.P.Raval for the original plaintiffs in Appeal From Order No.377 of 2010.
3. Learned Senior Advocate, Mr.S.I.Nanavati for the original defendants, mainly submitted that the main ground for challenging the impugned order was that the trial court failed to appreciate that the original plaintiffs preferred Misc.Application No.2 of 2010 contending that there was some error in the 'karardad' dated 10-8-2000 due to which, the decree showing the erroneous date was drawn by the trial court and hence, said Misc. Application was preferred in Regular Civil Suit No.794 of 1987 praying to correct the date from 21-3-1970 to 2-3- 1972 in the decree, however, no order was passed in said application and hence, a grave error has been committed by the trial court in passing the impugned order. He further submitted that two partition deeds between the defendant No.1 and plaintiffs were allegedly in existence one, dated 21-3-1970 conferring the rights of the entire suit property upon defendant No.1 and the other, dated 2-3-1972 giving one-third share each to the plaintiffs and the defendant No.1 in the suit property. By decree dated 11-8-2000, it was directed that rights of the parties would be governed by partition deed dated 21-3-1970 whereby defendant No.1 would be vested with the right over entire suit property while change of date would derive the plaintiffs one-third share each in suit property. He further submitted that the trial court has not considered the fact that by filing Misc.Application for review of the decree dated 11-8-2000 in Regular Civil Suit No.794 of 1997, the plaintiffs have accepted that there was an error in 'karardad' and hence an error has been crept in in the decree. However, whether such a review after ten years for correction of the date mentioned in the decree would be permissible or not is yet to be decided by the trial court and said review application would change the whole character of the consent decree and, therefore, by passing the impugned order, the trial court has virtually decided the review application and hence, the impugned order deserves to be quashed and set aside. He further submitted that trial court while deciding an interim injunction application had no jurisdiction or authority to state upon an order passed by a competent court which attained finality as the said trial court was not sitting in appeal over the decree already drawn by another trial court. He further submitted that the trial court erred gravely in interpreting the decree and holding that there were errors in the said final decree. He further submitted the decree dated 11-8-2000 in Regular Civil Suit No.794 of 1987 has become final between the parties and, therefore, the trial court hearing the application for interim injunction should have respected the sanctity of the order which has attained finality and should not have interpreted the order one way which is beyond the scope and jurisdiction of the trial court and hence, the impugned order is bad both on facts and law. He has taken this Court through Order 23 Rule 3 of the Code of Civil Procedure. He further submitted that the very intent of filing of Misc.Application No.160 of 2000 in Special Civil Suit No.685 of 2009 by the original defendant No.1 after 12 years for recall of ex-parte judgment and decree was to set aside the agreement 2-3- 1972 and the rights of the parties to govern by earlier partition deed dated 21-3-1970 so as to mean that plaintiffs are not entitled to any share in the suit property and the property would stand with the defendant No.1. Said application was allowed vide order dated 29-7-2000 and the parties entered into a “karardad' dated 10-8-2000 and judgment was passed on 11-8-2000 and a decree came to be finally drawn. He further submitted that the trial court should never permit to withdraw an ex-parte decree which was existing for the last 12 years and, therefore, the judgment and decree in Regular Civil Suit No.794 of 1987 is true and correct as it directs the rights of the parties to be governed by partition deed dated 21-3- 1970. Therefore, by passing the impugned order, the trial court has permitted correction of the decree from 21-3-1970 to 2-3-1972 and thereby the entire character of the consent decree has been changed. He further submitted that once a consent decree is passed then, as per Order 23 Rule 3A, second suit is not maintainable and, therefore, trial court has committed error in granting injunction. In view of the above, he sought to quash and set aside the impugned judgment and order. In this connection, he relied on a decision of Hon'ble Supreme Court reported in (2006)5 Supreme Court Cases 566 in the case of Pushpa Devi Bhagat Vs. Rajinder Singh and Others wherein it has been held in paragraph 17 as under:
“17. The position that emerges from the amended provisions of Order 23, can be summed up thus :
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.”
He has also relied on the following reported decisions:
i) (2006) 10 Supreme Court Cases 782 in the case of Tulsan Vs. Pyare Lal and Others;
ii) (2004)8 Supreme Court Cases 488 in the case of Maharwal Khewaji Trust (Regd.), Faridkot Vs. Baldev Dass;
iii) 2006(4) GLR page 3180 in the case of Yuvraj Prithvirajsinhji, S/o Maharao Madansinhji Vs. Maharani Rajendrakunvarba Saheb & Ors.; and
iv) (2008) 15 Supreme Court Cases 673 in the case of Ranganayakamma and another Vs. K.S.Prakash (dead) By LRs. and Others.
4. Learned Senior Advocate, Mr.Mihir Thakore appearing for the original plaintiffs in Appeal From Order No.378 of 2010, took this Court through relevant records as well as documents more particularly compromise deed (Karardad) passed in Civil Suit No.794 of 1987 and submitted that on a plain reading of this compromise deed, prima facie it seems that all the parties consented to the effect that compromise deed dated 2-3-1972 is binding to all the parties concerned for the welfare of the family. This clearly shows that all the parties agreed to act upon as per the writing dated 2-3-1972 which prima facie shows that while passing order, the trial court has committed an error by mentioning the date of compromise deed as 21-3-1970 and, therefore, trial court has rightly held that by simply reading the compromise, parties were agreed to act upon as per the compromise which took place on 2-3-1972.
5. Mr.Mihir Thakore took this Court through 'karardad' dated 11-8-2000 which is placed on record of Regular Civil Suit No.794 of 1987 wherein it is stated in the beginning of para 2 in uncertain terms that the parties would act as per the agreement arrived at between the family members on 2-3-1972 as it is binding on them and now there is no dispute. It prima facie appears from paragraph 1 of the 'karardad' that by mistake the date is mentioned as 21-3-1970 and, therefore, he submitted that trial court has rightly held that court is not reviewing the order or recalling the order and parties were agreeing to act as per the agreement dated 2-3- 1972 and, therefore, from any stretch of imagination, it could not be said that trial court has upset the decree by recalling the consent decree passed by the trial court. He further submitted that if parties were required to act as per the partition took place on 21-3-1970 then, question does not arise for the parties to state in para 2 of 'karardad' that they will act as per the agreement dated 2-3-1972. He further submitted that as per the agreement dated 2-3-1972, the parties have acted and properties other than Survey No.255 were in the joint name. He also further submitted that to get undue advantage qua the date of 'karardad' of 21-3-1970, the defendant Nos.2 to 9 canceled the name of plaintiffs qua Survey No.255 and thereby by registered sale deed dated 1-10-2009, the defendant No.1 sold the property to defendant Nos.2 to 9. It is therefore submitted that the impugned order passed by the trial court is just, legal and proper and the same does not require to be interfered with in these appeals and hence, it is requested that both the appeals deserve to be dismissed.
6. Learned advocate, Mr.Jigar Raval, for the plaintiffs in Appeal From Order No.377 of 2010 adopted the arguments of learned Senior Advocate, Mr.Mihir Thakore.
7. This Court has gone through the impugned order passed by trial court below injunction application together with the judgments relied on. Keeping in mind the principles laid down therein, this Court would proceed further.
8. This Court has considered the aspect that present Appeal From Orders challenge a discretionary order passed by the trial Court. In this connection, reliance is placed on a decision of this Court in the case of Matrix Telecom Pvt.Ltd. Vs.Matrix Cellular Services Pvt.Ltd. reported in 2011(3) GLR 1951 more particularly towards paragraph 6.1 which reads thus:
“6.1 It is required to be noted that it is well settled law that the Appellate Court may not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion.”
1. In view of the above settled principle of law, power of this Court as an Appellate Court to interfere with the order passed by the trial court is very limited and only in exceptional circumstances, the appellate Court can interfere with the order passed by the trial Court. The appellate Court cannot reevaluate or reassess the entire evidence and arrive at a conclusion contrary to the conclusion arrived at by the trial Court. However, in case where the order passed by the trial court is found to be invalid, illegal, arbitrary, perverse or contrary to the settled principles of law, the Appellate Court has all powers to interfere with the same. Considering the above principles of law, this Court has only to see whether the trial court has committed any error in passing the impugned order or not. It has also to see whether the main basic principles namely, prima-case, balance of convenience and irreparable loss are satisfied or not in passing the order.
2. This Court has also gone through the compromise deed (karardad) Ex.28 which is placed on record in Regular Civil Suit No.794 of 1987. It is to be noted that the signature appearing in the said 'Karardad' is neither disputed by any parties nor any allegation of fraud is made out to the effect that the compromise decree is obtained by fraud. However, as per the plaintiffs, there was an error in writing the date of the compromise deed by the trial court in the decree. In this context, the order passed by the trial court is required to be seen. English translation of the said order reads as under:
“In this suit, by Ex.4, the parties have entered into a compromise and each party to the suit has agreed and accepted the same and, therefore, the following final order is passed:
Order As per the partition deed which took place on 21-3- 1970, right and title over the suit property will remain with the plaintiffs and defendants and earlier order of injunction passed below Ex.1 is hereby quashed and set aside.”
3. In view of the above, in the opinion of this Court, if the trial court has passed an order to the effect that decree be drawn in terms of the compromise deed, then, there will not be any other possibility except drawing the decree in terms of the settlement and partition should take place as per the said compromise deed. However, after hearing the parties, final order is passed as referred above and, therefore, it is too early to say at this juncture that any error is committed by the trial court by mentioning the date as 21-3-1970. In this connection, Order 23 Rule 3-A requires to be looked into which reads as under:
“3-A. Bar to suit:- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”
4. It is explicitly clear from the above legal position that second suit before a civil court challenging the decree passed in view of compromise arrived at between the parties by another civil court is barred, however, remedy is available to either of the parties to the suit in which decree is passed to approach the same Court for rectifying or cancelling the decree. As per the statement of the learned counsel for the plaintiffs, application was preferred by them before the trial court for reviewing the order or for clarification of the order which was numbered as Review Application No.2 of 2010 and same is pending.
5. It is to be noted that the trial court has observed by interpreting the contents of 'Karardad' that parties were agreeing to act as per the compromise took place on 2-3- 1972 which amounts to upsetting the decree passed by the competent court. No doubt, entry in the revenue record to this effect was carried out by the defendant Nos.2 to 9 in the year 2009 and the said entry was challenged and proceedings are also pending before the revenue court. It is also pertinent to note that though order was passed on the basis of Karardad (compromise) in Regular Civil Suit No.794 of 1987 on 11-8-2000, no steps were taken by the plaintiffs for rectifying the decree and after the defendant No.1 executed the sale deed in favour of defendant Nos.2 to 9 filed the present suit after about 10 years before the trial court. These aspects have not been considered by the trial court. It is pertinent to note that application for clarification is pending before the concerned court and, therefore, remedy is available to pray for stay of execution of the decree as well as for any other relief for entitlement as per the legal position of law.
6. In the entirety of the facts and circumstances narrated hereinabove, this Court is of the opinion that the plaintiffs have failed to establish all the three main basic principles in their favour and, therefore, both the appeals require to be allowed by quashing and setting aside the impugned judgment and order.
7. Thus, both Appeal From Orders are allowed. Impugned judgment and order dated 18-11-2010 passed below Ex.5 by the learned 8th Additional Senior Civil Judge, Vadodara, in Special Civil Suit No.685 of 2009 is hereby quashed and set aside and injunction application Ex.5 is rejected.
8. In view of the above order passed in Appeal From Orders, Civil Application does not survive and is disposed of. Notice is discharged.
9. Looking to the peculiar facts and circumstances and as the suit is of the year 2009, trial court is directed to dispose of the suit within one year from the date of receipt of copy of this order.
10. It is needless to state that the observations made by this Court in this order being tentative ones may not prejudice the parties while deciding the main civil suit.
radhan [M.D.SHAH,J.] Further Order After pronouncement of aforesaid judgment and order, learned advocate, Mr.R.D.Dave for the original plaintiffs, prayed for stay of the order for a period of eight weeks. Considering the facts and circumstances, aforesaid order is stayed for a period of eight weeks.
[M.D.SHAH,J.] radhan