1. This petition is preferred being aggrieved by the order passed in Misc. Civil Application No. 10/2009 with brief facts as follows:
2. On dated 26th August 2011 an application Exh. 50 had been preferred interalia urging that there was a need to frame a preliminary issue. respondent No.1 original plaintiff filed Civil Suit No. 206/2002 before Senior Civil Judge, Bharuch for declaration that the documents dated 29th December 2001 and 19th January 2002 executed by respondent No. 2 herein in favour of respondent No. 3 are null and void.
3. An application for interim injunction was filed and eventually exparte relief of injunction granted was confirmed till the disposal of the suit.
4. An appeal from order was preferred being Appeal from Order No. 253 of 2002 which was disposed of with a direction to the trial court to decide the suit at the earliest preferably within ten months of the receipt of the order on 13th December 2002.
5. The parties filed a compromise purshis Exh. 213 by amicably settling their disputes. The order was passed on 29th May 2009 and with consent decree was drawn on the basis thereof on 19th June 2009.
6. The respondent No. 1 filed Civil Misc. Application 10/2009 under Order 23 read with section 151 of the Code of Civil Procedure, for recalling the aforesaid consent decree. This was contested by respondent No. 3 by filing reply Exh. 13. Exh. 34 was preferred under Order 1, Rule 10(2) of the Code of Civil Procedure for impleading the petitioner herein as a party opponent No. 3.
7. The petitioner filed an application Exh. 50 requesting the Court to decide such application on the basis of preliminary issue. Respondent No. 3 filed a reply Exh. 52A contesting such a claim. Respondent No. 1 averred that his signature was obtained in the compromise purshsis under threat and coercion and he did not append his signature out of free will.
8. After biparte hearing the Court rejected the application Exh. 50 vide its impugned order dated 26th August 2011.
9. It is urged in present petition that the Court has erred in not allowing application for preliminary issue. It is also alleged that respondent No.1 is a seasoned and cunning person and therefore it is wrong to allege that he was forced to sign in a compromise purshis. The Court was also not correct to say that there is nothing to ascertain as to whether such purshis is tendered by fraudulent signature or not. The Court has wrongly therefore, directed that the question has to be decided on recording, the evidence.
10. On having heard learned advocate for the petitioner and having examined the order impugned as can be noted from the record particularly that it is very unlikely that the plaintiff who had the order of injunction in his favour would withdraw the suit on the basis of compromise purshsis without the matter being decided on merits and forgo his right thereby in favour of the other party. This had actuated the Court to permit the impleadment of respondent No. 3 Mr. Nadim M. Shaikh and it further can be noted that the Court firmly believed that the entire suit could not have been decided on the basis of preliminary issue. There has been sufficient reasons given by the Court independently also. This Court is of the opinion that there is no jurisdictional error pointed out nor was there any illegality or perversity in the order impugned. Again in the matter where compromise has been effected and when one of the party alleges within a very short duration the threat of blackmailing, the Court if chooses to record the evidence in a matter where the issues and disputes were not adjudicated on merits, rejection of application cannot be interfered with and therefore, this application deserves no further meritorious consideration and is dismissed accordingly.
(Ms. Sonia Gokani,J.) mary//