Rita D’Souza vs Jay Mangal Kumar

In both the writ petitions decree prepared on 12.05.2000 in Title Suit No.6 of 2000 and the judgment dated 29.06.2013 passed in Misc. Case No.12

of 2002, by which plea taken by the applicant-B.J. Aibara that order dated 29.04.2000 passed in Title Suit No.6 of 2000 has been obtained by playing

fraud has been rejected, have been challenged. Â

The petitioner in W.P.(C) No.4640 of 2013 M/s Elite Apartments Pvt. Ltd. claims that Mr. B.J. Aibara gifted half share in Holding no.9 & 10 in

favour of Rita D’Souza and Sita M. Hiramanek [writ petitioners in W.P.(C) No.5194 of 2013] by two separate registered gift-deeds, both dated

09.05.2000 and it has purchased a piece of land having built up area 3000 sq.ft. in Holding No.9 & 10 from B.J. Aibara, Rita D’Souza, Sita M.

Hiramanek and Phiroz Nariman Kutar through registered sale-deed dated 20.03.2002. This property is comprised under the compromise decree. The

petitioners in W.P.(C) No.5194 of 2013 have claimed that they have purchased lease-hold rights for 1000 sq.ft. each in Holding No.9 & 10 from

M/s Elite Apartments Pvt. Ltd. through two registered sale-deeds, both dated 10.04.2002. Title Suit No.6 of 2000 was instituted by Jay Mangal

Kumar for a decree for specific performance of agreement dated 14.06.1999 executed by Mr. B.J. Aibara. The petitioners were not party in the

suit. A compromise petition was filed in the suit on the basis of which the suit was decreed vide judgment dated 29.04.2000. This compromise

decree was challenged by Mr. B.J. Aibara in Misc. Case No.12 of 2002 on the ground of fraud.Â

An objection to maintainability of the writ petition has been raised by the respondent. It is contended that against the decree prepared in Title Suit

No.6 of 2000 and the judgment in Misc. Case No.12 of 2002, appeal shall lie under section 96 CPC. Â

Section 2(2) CPC defines decree to mean formal expression of an adjudication by which rights of the parties are conclusively determined with

regard to all or any of the matters in controversy in the suit. Section 96 CPC provides appeal from original decree. An appeal from every decree

passed by any court exercising original jurisdiction shall lie under section 96 CPC, however, section 96(3) CPC provides that no appeal shall lie from a

decree passed by the court with the consent of the parties. Â

Stand taken by the petitioners is that the decree prepared in Title Suit No.6 of 2000 is a consent decree. Â

In Title Suit No.6 of 2000 parties entered into a compromise on the basis of which the suit was decreed and a decree was prepared which was

sealed and signed on 12.05.2000. Challenging the judgment in Title Suit No.6 of 2000 the defendant-B.J. Aibara filed an application under Order

XXIII Rule 2 r/w Rule 3-A CPC setting up a plea of fraud. Now, in the present writ petitions also the petitioners have sought a declaration that the

decree prepared pursuant to final order dated 29.04.2000 passed in Title Suit No.6 of 2000 is illegal, arbitrary and without jurisdiction and it was

obtained by practicing fraud; the petitioners have invoked revisional jurisdiction of this Court for the same relief which was sought by Mr. B.J. Aibara

in Misc. Case No.12 of 2002. For the same cause of action and seeking similar relief two separate proceedings, even at the instance of different

persons, are not maintainable. On a plea that the compromise decree has been obtained by playing fraud Misc. Case No.12 of 2002 was initiated by

Mr. B.J. Aibara through whom the petitioners are claiming right, title and interest over the property in question and while

so,           the petitioners cannot seek parallel remedy by filing these writ petitions.Â

Accordingly, these writ petitions seeking a declaration that decree dated 12.05.2000 has been obtained by playing fraud are held not

maintainable. Â

On maintainability of the writ petition challenging judgment dated 29.06.2013 passed in Misc. Case No.12 of 2002, it is contended that judgment in

the miscellaneous case is decree as defined under section 2(2) CPC.Â

Judgment dated 29.06.2013 would reflect that the parties have led evidence, oral as well as documentary, and on a consideration of the materials

laid in the proceeding of the miscellaneous case the trial Judge has held that no fraud was played in filing the compromise petition; the miscellaneous

case was dismissed by the impugned order dated 29.06.2013. Apparently, proceeding in the miscellaneous case was conducted like a

regular suit. By this judgment plea taken by late Mr. B.J. Aibara, that judgment and decree in Title Suit No. 6 of 2000 was obtained by playing

fraud, has been conclusively decided by the trial court. Thus, the judgment in Misc. Case No.12 of 2002 falls under the definition of decree under

section 2(2) CPC. Against the judgment dated 29.06.2013 passed in Misc. Case No.12 of 2002 a regular First Appeal under section 96 CPC would

lie. Accordingly, it is held that the writ petition against the judgment dated 29.06.2013 passed in Misc. Case No.12 of 2002 is not maintainable. Â

On the question of locus-standi of the petitioners to file these writ petitions, Mr. Devashish Bharuka, the learned counsel for the petitioner inÂ

W.P.(C) No.4640 of 2013 referring to the judgment in “Smt. Saila Bala Dassi vs. Smt. Nirmala Sundari Dassi & Another†reported in AIR 1958

SC 394 relies on section 146 CPC, which reads as under:

     “Proceedings by or against representatives.- Save as otherwise provided by this Code or by any law for the time being in force,

where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made

by or against any person claiming under him.â€​ Â

In “Smt. Saila Bala Dassi†referring to the decision in “S.V. Sitaramaswami vs. Dulla Lakshmi Narasamma & Anr.†reported in (1918)

ILR 41 Mad 510 wherein it has been held that an appeal is a proceeding for the purpose of Section 146 CPC, the Supreme Court has held that the

expression “claiming under†is wide enough to include cases of devolution and assignment mentioned in Order XXII Rule 10 CPC. It has been

held that whoever is entitled to be but has not been brought on record under Order XXII Rule 10 CPC in a pending suit or proceeding would be

entitled to prefer an appeal against the decree or order passed therein, if his assigner could have filed such an appeal. In the said case, after the suit

was decreed, the defendant had sold the suit property to Smt. Saila Bala Dassi who was not arrayed as respondent in the appeal filed by the

defendant. When the decree was put on execution at the stage of preparation of final decree the purchaser appeared and raised an objection to

execution of the decree as time-barred. This plea was rejected by the court and against this judgment the defendant had filed appeal. In the pending

appeal, the purchaser filed an application to be brought on record as appellant. The High Court had dismissed her application which, however, was

allowed by the Supreme Court.Â

The petitioners have claimed that part of the suit property was conveyed to them through registered sale-deeds. They have a valuable interest

involved in the property in question. It is contended by Mr. Devashish Bharuka, the learned counsel for the petitioners that judgment dated 29.06.2013

passed in Misc. Case No.12 of 2002 has clouded the right, title and interest of the petitioners in the suit land. On behalf of the respondent it is

contended that once application for impleadment of the petitioner-M/s Elite Apartments Pvt. Ltd. in Misc. Case No.12 of 2002 was dismissed by the

trial court and this order of rejection stood affirmed by this Court by order dated 02.12.2011 passed in W.P.(C) No.2265 of 2008, at the instance of the

petitioners these writ petitions are not maintainable.           Â

In the first place the object and the intent behind Order I Rule 10(2) CPC need to be kept in mind. Order I Rule 10(2) CPC provides that the court

may strike out a party who has been improperly joined, whether as plaintiff or defendant, and may join a party who appears to be a necessary or

proper party. Who is a necessary party and who can be a proper party has been explained by the Supreme Court in “Udit Narain Singh Malpaharia

vs. Additional Member Board of Revenue, Bihar and Another†reported in AIR 1963 SC 786. It has been held that the one without whom no

order can be made effectively and the dispute cannot be settled is a necessary party and the one in whose absence an effective order can be made

but whose presence is necessary for a complete and final decision on the question involved in the proceeding is a proper party. May be impleadment

of the petitioners herein in Misc. Case No.12 of 2002 would have helped the court to decide the controversy conclusively, but dismissal of the

application for impleadment filed at the instance of the plaintiff of Title Suit No.6 of 2000 would not curtail right of the petitioners, if in law they are

entitled to file appeal against judgment dated 29.06.2013 passed in Misc. Case No.12 of 2002. Â

In “Baldev Singh Vs. Surinder Mohan Sharma & Ors.†reported in (2003) 1 SCC 34, the Supreme Court has observed that a person

aggrieved to file an appeal must be the one whose right is affected by reason of the judgment and decree sought to be impugned. Now, it is well-

settled that a person who is not a party in the suit may prefer an appeal with leave of the appellate court [refer “Hardevinder Singh Vs. Paramjit

Singh & Ors.†reported in AIR 2013 SC (Supp) 873]. The petitioners who in view of the judgments of the Supreme Court if can seek leave of the

appellate court for filing appeal against the judgment in Misc. Case No.12 of 2002, in my opinion, they can also maintain these writ

petitions.        Â

In view of the aforesaid discussions, while dismissing the writ petitions as not maintainable a liberty is reserved with the petitioners to seek leave of

the court for filing appeal under section 96 CPC, if so advised, however, it shall remain open to the respondent to raise objections including one of

limitation, if the appeal is preferred by the petitioners. Objections raised by the respondent shall be decided by the appellate court on the basis of

pleadings of the parties and, of course, in view of the provisions under Limitation Act, 1963.     Â

The writ petitions stand disposed of in the aforesaid terms.

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