REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1085 OF 2009

(Arising out of SLP (C) No.4045 of 2007)

Sneh Gupta …

Appellant

Versus

Devi Sarup & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1.Leave granted.

2.Interpretation of Order XXIII Rule 1 of the Code of Civil Procedure

is involved in this appeal. It arises out of a judgment and order dated

13.9.2006 passed by a learned Single Judge of the High Court of Punjab and

Haryana setting aside an order dated 29.9.2005 passed by the Additional

District Judge, Jagadhari whereby and whereunder the terms of settlement

entered into by way of an agreement dated 25.4.1998 between some of the

parties hereto were declared illegal as also null and void.

3.Indisputably, two suits were filed being Suit No.185 of 1989 and Suit

No.303 of 1992 on 20.11.1989 and 21.3.1992 before the Additional Civil

Judge, Jagadhari, Haryana and Senior Division Bench and before the Civil

Judge, Jagadhari, Haryana, respectively.

In the said suits, inter alia, the question as regards an order of

mutation carried out in the Revenue records pursuant to or in furtherance of

a transfer made by one Raghuvir Singh in favour of his wife and son stated

to be under an oral gift deed representing himself as the successor of

Bhanumal was in question. We would refer to the respective claims made in

the said suits a little later. We may, however, at this stage, notice the

genealogical tree which is as under :

2

Banu Mal

Munni

Devi

W/o O.P. Gupta

Veena

Nirwani

Chander

Nirwani

Sneh Lata

@ Sneh

Gupta

Pawan

Gupta

K.K.

Gupta

Vinod

Gupta

Raghbir Singh

Cousin of

Banu Mal

(Kesho Devi-wife)

Devi Sarup

(Maya Devi – wife)

Kusum Lata

4.Raghbir Singh is said to be the third cousin of Banu Mal. Banumal is

said to have executed a Will in favour of Munni Devi on or about

14.11.1937. He is again said to have executed a Will in favour of Raghbir

Singh on or about 27.3.1943. According to the plaintiff, Raghbir Singh had

acquired life interest in the purporting said Will without having any right to

alienate, transfer, mortgage or creating any charge on the properties situated

in various villages, namely, Rapri, Radur, Ghesfur etc.

5.In Suit No.185 of 1989, the cause of action is said to have arisen

when order of mutation was passed in favour of the transferees of Raghbir

Singh. Whereas the decree prayed for in Suit No.303 of 1992 was for a

declaration that Raghubir Singh was only having a life interest in the suit

property and having not abided the terms and conditions contained in the

said Will dated 27.3.1943, has lost his right to manage the property in suit;

an order of mutation was the subject matter of Suit No.185 of 1989, on the

premise, as has been noticed by the learned Trial Judge as under :

“i)That in the alleged mutation, Banu Mal has

been shown to be without his wife and

children, but in fact, he had a daughter

named Jeewani @ Munni Devi, living at

that time. Thus, said mutation was

sanctioned by producing a fictitious person,

in place of Banu Mal;

3

ii)that mutation was neither verified nor

initialed with date by filed Kanungo, as

required under para 7.4(ii) of the Punjab

Land Records Manual;

(iii)that another mutation No.1423 pertaining to

the partition of joint holdings, was

sanctioned on 28.2.1954, but there is no

mention in the disputed mutation No.1427,

entered on 26.2.1954 and sanctioned on

2.3.1954, therein. Thus, disputed mutation

was kept secret and later on got sanctioned,

in collusion with revenue officers. The

disputed mutation was sanctioned without

any request of Banu Mal;

(iv)that mutation No.1422 and 1423, dated

28.2.1954 show that the consolidation work

in village Rapri started on 25.8.1952 and

completed on 28.2.1954 but disputed

mutation was entered prior to completion of

consolidation work and without any

approval or sanction of the Consolidation

Officer, as required to be made under the

Consolidation of Holdings of Punjab Act,

1948. Had it been in the knowledge of

Banu Mal, then he would have filed an

application before the consolidation Officer,

but no such application is available on the

record;

(v)that under the will, Raghubir Singh

(defendant No.4) had a life estate on the

property in dispute, but he has

alienated/gifted/transferred the property of

the Will to different persons, without any

right, title and against the dictates of the

will. Thus, this fact goes to prove the mala

fide and fraudulent intention of Raghubir

Singh, who got the disputed mutation forged

and fabricated. The disputed mutation does

4

not show the name of the person, in whose

favour of the alleged oral hiba was made by

Banu Mal; and

(vi)that said Banu Mal had been residing with

his religious Guru at Saharanpur (UP) and

die to his illness, he was unable to work for

about one year, prior to his death. He was

completely confined to his bed and

therefore, he was not present before the

revenue officer, at the time of sanction of

that mutation.”

6.The cause of action for institution of the Suit No.303 of 1992 is said

to have arisen as Raghbir Singh had not carried out the testator’s intentions

contained in the said Will dated 27.3.1943 and, thus, violated the terms of

the ‘trust’ and despite having been called upon to handover possession

failed and/or refused to do so.

7.The properties in suit involved in both the suits were also different.

Whereas in Suit No.185 of 1989, the subject matter of the suit was 835

kanals and 7 marlas of land (485 acres) situated in the revenue estate of

village Rapri in the State of Haryana, the subject matter of in Suit No.303 of

1992 was the land measuring 221 kanal 8 marlas (about 24-25 acres)

situated in village Rapri, Radaur, Ghespur and Dholra).

5

Title Suit No.185 was decreed by a judgment and decree dated

30.10.1996 passed by the Additional Civil Judge, Senior Division

Jagadhari, Haryana, holding :

“As a result of my findings and observations on

above issues and more particularly, on issue No.1,

2 and 9, the suit of the plaintiff is decreed with

cost, against the defendants No.1 to 4 and 11 to

24, with the declaration that mutation No.1427,

sanctioned on 2.3.1954 (Ex.P-8) and sale deeds

and mutations, subsequent thereto, are illegal, null

and void, ineffective, ultra vires and not binding

upon the rights of plaintiff and defendants No.5 to

9 and plaintiff and defendants No.5 and 9 are also

entitled to the possession of the suit land and

defendants No.1 and 4 and 11 to 24 are also

restrained from further alienating, transferred or

creating any charge on the suit land, in any

manner.”

8.In passing the said judgment and decree, the Court arrived at a

finding that Raghbir Singh played a fraud in making transfer of the

properties purported to be under a ‘hiba’ made by Banumal. It was

furthermore held that order of mutation was not passed in presence of Banu

Mal. The learned Judge pointed out that while Banu Mal had been shown to

be without any issue before the Revenue Officer although , admittedly, he

had a daughter named Munni Devi @ Jeewani.

6

It was, therefore, opined that the purported gift in terms whereof the

mutation was sanctioned in favour of the respondent Nos.1, 2 and 3 and

their mother was an act of fraud and misrepresentation on their part to

deprive the children of Munni Devi, the daughter of Banu Mal, of their

properties.

9.Respondent Nos. 1 to 3 herein and Raghbir Singh filed appeals

thereagainst before the District Judge which were marked as Appeal

No.254/33 of 1996. As some properties had been transferred, the

transferees thereof also preferred appeals which were marked as Appeal

Nos.218 and 220 of 1996.

10.It is not in dispute that during the pendency of the said appeals, the

plaintiff and the respondent No.3 entered into a compromise. A

compromise petition was filed in Civil Appeal No.254 of 1996, the terms

whereof are as under :

“That the parties have compromised. As per

compromise, the appeal of the appellant may

kindly be allowed and the suit of the respondents

may kindly be dismissed as withdrawn and the

parties be left to bear their costs. The appellants

are the absolute owners of the suit property.”

7

11.The learned Additional District Jagadhari in whose court the said

appeal was transferred for disposal recorded the compromise allowing the

appeal and dismissing the suit of Veena Nirwani. A declaration was also

made that the appellants therein (Respondents Nos. 1 to 3 herein) were the

absolute owners of the said property.

It is not in dispute that the appellant and/or other heirs and legal

representatives of the said Munni Devi were not parties to the said

compromise.

A compromise was also said to have been entered into by Veena

Nirwani-plaintiff with Raghbir Singh and others in Suit No.303 of 1992, the

terms whereof read as under :

“1.That the suit of the plaintiff is to be decreed

as prayed for in the plaint except the land

measuring 42 Kanals 3 marlas i.e. 1/3

rd

share of the land measuring 126 Kanals 9

marlas fully detailed and described in para

‘C’ of the heading of the plaint.

2.That the defendant No.1 has

delivered/handed over the whole property

fully detailed and described in the heading

of the plaint to the plaintiff and defendants

Nos.2 to 6 at the spot and now the plaintiff

and defendants Nos.2 to 6 are in actual and

physical possession being its owners and

defendant No.1 or his successors or LRs

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will have no right, title or interest of any

kind in the land in suit.

3.That the defendant No.1 has an electric

tube-well in the area of village Dhaulra and

defendant No.1 will be bound to give water

for irrigation to the plaintiff and defendant

Nos. 2 and 6 for one year.

4.That the plaintiff and defendants Nos.2 and

6 are owners in possession of tree etc.

standing in the land in suit and the plaint

has been delivered to the plaintiff and

defendant Nos.2 and 6. However, some

portion of these properties are under the

tenancy of different persons and now the

plaintiff and defendants Nos.2 and 6 will

have a right to recover the rent of these

properties and deal with the properties in

the manner they like i.e. they have each and

every right to eject the tenant and get

possession of the same and to alienate etc.

Shops mentioned at point G & H have

already been alienated by the defendants

and the relief regarding these shops is

relinquished by the plaintiff.

5.That according to the aforesaid compromise

the possession has been changed and now

the plaintiff and defendant Nos.2 to 6 can

get the entries corrected in their name in the

revenue records well as in the relevant

municipal record etc.”

12.The said compromise petition was also accepted. It is stated that

pursuant to or in furtherance thereof, Raghbir Singh delivered possession of

9

2/3

rd

of the property in suit in favour of Respondent Nos.4 to 8 herein as

also the appellant, retaining the 1/3

rd

thereof. The suit was decreed in part.

13.Appellant filed an application before the Court of Additional District

Judge, Jagadhari questioning the compromise entered into by and between

the plaintiff and the respondent Nos.1 to 3 pursuant whereto the said suit

No.185 of 1989 was allowed to be withdrawn on the premise it had been

done without her knowledge and consent and despite the fact that she had

got vested rights therein in terms of the judgment and decree passed by the

trial court in suit No.185 of 1989. It was furthermore contended that prior

to acceptance of the said compromise, it was obligatory on the part of the

learned Judge to issue notice upon the appellant and others who derived

benefit under the said judgment and decree dated 30.10.1996 passed in Suit

No.185 of 1989. The learned Additional District Judge by an order dated

29.9.2005 accepted the said contentions of the appellant and set aside the

compromise decree dated 25.4.1998 opining that the same was illegal, null

and void.

14.Applications under Article 227 of the Constitution of India preferred

thereagainst which were marked as C.R. 6473 and 6588 and 6589 of 2005

have been allowed by a learned Single Judge of the High Court by reason of

the impugned Judgment.

10

15.In these appeals, except Veena, all other children of Munni Devi

supported the appellant, although they did not file any application for

setting aside the said consent decree.

16.Mr. Jayant Bhushan, learned counsel appearing on behalf of the

appellant, would submit that the learned Additional Civil Judge, Senior

Division, Jagadhari, having opined in its judgment and decree dated

30.10.1996 that not only Veena but also the appellants and her other

brothers and sisters were entitled to recovery of possession of the lands in

suit, the purported compromise entered into by and between the original

plaintiff and the contesting defendants must be held to be illegal and

without jurisdiction. The learned counsel submitted that for all intent and

purport, the suit was filed by Veena in a representative capacity and, thus, in

absence of other heirs and legal representatives of Munni Devi, the

compromise petition could not have been accepted.

17.Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of

the respondent, on the other hand, would contend :

1)In terms of Order XXIII Rule 1 of the Code of Civil Procedure, it is

the privilege of the plaintiff alone to withdraw the suit at any stage of

11

the proceedings and the appellant being only one of the defendants

did not have any locus standi to object thereto.

2)Both the compromise petitions filed in Suit No.185 of 1989 and Suit

No.303 of 1992 entered into by and between the parties should be

treated to be a comprehensive one keeping in view the representative

right, title and interest claimed by them in support of the properties

involved in both the suits and in that view of the matter the appellant

herein being a party to the compromise petition filed in Suit No.303

of 1992 and having accepted the benefit arising out of the same, is

estopped and precluded from challenging the validity or otherwise of

the compromise petition filed in Suit No.185 of 1989.

3)In any view of the matter, the appeal as against the respondent No.19

having been dismissed as his name was deleted at the risk and cost of

appellant by order dated 25.3.2008 and the said order having attained

fanility, this Court should not pass any order which would result in

passing of inconsistent and contradictory decrees.

18.Before adverting to the rival contentions of the parties, we may notice

some provisions of the Code of Civil Procedure (the Code). Sub-rule (1) of

Rule 1 of Order XXIII and Rule 3 of the Code read as under :

12

“1. Withdrawal of suit or abandonment of part

of claim.—(1) At any time after the institution of a

suit, the plaintiff may as against all or any of the

defendants abandon his suit or abandon a part of

his claim:

Provided that where the plaintiff is a minor or

other person to whom the provisions contained in

rules 1 to 14 of Order XXXII extend, neither the

suit nor any part of the claim shall be abandoned

without the leave of the Court.

XXX XXX XXX

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

dented 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.”

13

19.It is not a case where the original plaintiff applied for withdrawal of

the suit similicitor. She did so relying on or on the basis of a compromise

entered into by and between the parties. If a suit is to be decreed or

dismissed on the basis of a compromise, even permission to withdraw the

suit pursuant thereto, in our opinion, order XXIII Rule 1 of the Code may

not have any application. Even in such a case, a permission to withdraw the

suit could have been given only with notice to the respondents who had

become entitled to some interest in the property by reason of a judgment and

decree passed in the suit. The Court for the purpose of allowing withdrawal

of a suit after passing the decree, viz., at the appellate stage, is required to

consider this aspect of the matter. Veena, although was a plaintiff, did not

claim any exclusive title to the property in herself. She claimed title to the

property as one of the daughters of Munni Devi. Interest of the appellant

and her other sisters and brothers also stood on the same footing. They also,

for all intent and purport, could have independently maintained a suit either

in their individual capacities or jointly.

20.The claim put forth by Raghbir Singh on the basis of an oral ‘hiba’

purported to have been made by Banu Mal before the Revenue authorities

was found to be tainted with fraud. A finding of fact was arrived at that no

such transaction had taken place as Banu Mal was seriously ill and had been

14

residing at some other place. The learned Trial Judge also arrived at a

finding that before the Revenue Authorities, a misrepresentation had been

made stating that Banu Mal was issueless.

21.Things as they stand now, there cannot be any doubt or dispute that

the appellant is one of the heirs and legal representatives of Banu Mal being

a daughter of Munni Devi. She, therefore, indisputably was entitled to a

share in the property of Munni Devi as one of her legal heirs. Even if Order

XXIII, Rule 1 of the Code of Civil Procedure was applicable, in terms of

Rule 1A of the said Order, the appellant as a defendant in the suit could

have applied for being transposed as a plaintiff in terms of Order I Rule 10

of the Code of Civil Procedure and the Court was bound to pass an order

having due regard to the question as to whether she had a substantial

question to be decided as against any of the other defendants. Aappellant,

indisputably, claimed and was found to have rightly claimed a share in the

suit property.

Having got a decree in her favour, she was entitled to protect the

same. By reason of an agreement between some of the parties or otherwise,

a litigant cannot be deprived from the fruit of the decree.

15

22. Order XXIII, Rule 3 of the Code of Civil Procedure provides that a

compromise decree is not binding on such defendants who are not parties

thereto. As the appeal has been allowed by the High Court, the same would

not be binding upon the appellant and, thus, by reason thereof, the suit in its

entirety could not have been disposed of.

23. The court has also a duty to prevent injustice to one of the parties to

the litigation. It cannot exercise its jurisdiction to allow the proceedings to

be used to work as substantial injustice.

A consent decree, as is well-known, is merely an agreement between

the parties with the seal of the court superadded to it. {See Baldevdas

Shivlal and Another v. Filmistan Distributors (India) P. Ltd. and Others

[(1969) 2 SCC 201], Parayya Allayya Hittalamani v. Sri Parayya

Gurulingayya Poojari and Ors. [JT 2007 (12) SC 352]}.

24. If a compromise is to be held to be binding, as is well known, must be

signed either by the parties or by their counsel or both, failing which Order

XXIII, Rule 3 of the code of Civil Procedure would not be applicable.

{See Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270]}

16

In Dwarka Prasad Agarwal (D) By LRS. and Another v. B.D.

Agarwal and Others [(2003) 6 SCC 230], this Court held:

“32. The High Court also failed and/or

neglected to take into consideration the fact that

the compromise having been entered into by and

between the three out of four partners could not

have been termed as settlement of all disputes and

in that view of the matter no compromise could

have been recorded by it. The effect of the order

dated 29-6-1992 recording the settlement was

brought to the notice of the High Court, still it

failed to rectify the mistake committed by it. The

effect of the said order was grave. It was found to

be enforceable. It was construed to be an order of

the High Court, required to be implemented by the

courts and the statutory authorities.

35…Even if the provisions of Order 23 Rule 3 of

the Code of Civil Procedure and/or principles

analogous thereto are held to be applicable in a

writ proceeding, the Court cannot be permitted to

record a purported compromise in a casual

manner. It was suo motu required to address itself

to the issue as to whether the compromise was a

lawful one and, thus, had any jurisdiction to

entertain the same…”

{See also K. Venkatachala Bhat and Another v. Krishna Nayak (d) by

LRs. and Others [(2005) 4 SCC 117]}.

In R. Rathinavel Chettiar and Another v. V. Sivaraman and Others

[(1999) 4 SCC 89], this Court opined :

17

“22. In view of the above discussion, it comes out

that where a decree passed by the trial court is

challenged in appeal, it would not be open to the

plaintiff, at that stage, to withdraw the suit so as to

destroy that decree. The rights which have come to

be vested in the parties to the suit under the decree

cannot be taken away by withdrawal of the suit at

that stage unless very strong reasons are shown

that the withdrawal would not affect or prejudice

anybody’s vested rights. The impugned judgment

of the High Court in which a contrary view has

been expressed cannot be sustained.”

25. It is also not a case where the compromise can be said to be a family

arrangement. A family arrangement must be entered into by all the parties

thereto. Compliance of the requirements laid down in Order XXIII, Rule 3

of the Code of Civil Procedure is imperative in character. A compromise or

satisfaction must satisfy the conditions of a lawful agreement.

26.Causes of action of both the suits furthermore were different. The

subject matter of the suit was also different although may be overlapping to

some extent. If the compromise entered into by and between the parties to

Suit No. 303 of 1999 was to be given effect to, the same for all intent and

purport clearly goes to show that Bhanu Mal had the title over the property.

The learned Trial Judge in Suit No.185 of 1989 having found that Bhanu

Mal did not pass his title by way of oral Hiba/gift in favour of Raghbir

18

Singh, subject to the conditions in the Will, his title must be held to have

been accepted. Bhnau Mal, therefore, could dispose of his property in

accordance with law. If Raghbir Singh did not acquire any title by reason of

oral Hiba, on his death, subject to proof of compliance of the terms of the

Will, the same must be held to have vested in Munni Devi and on her death

upon her children.

27. Title to a property must be determined in terms of the statutory

provision. If by reason of the provisions of the Hindu Succession Act, 1956

the appellant herein had derived title to the property along with her brothers

and sisters, she cannot be deprived thereof by reason of an agreement

entered into by and between the original plaintiff and the contesting

defendants. If a party furthermore relinquishes his or her right in a property,

the same must be done by a registered instrument in terms of the provisions

of Indian Registration Act.

28.It is also well known that a suit cannot be withdrawn by a party after

he acquires a privilege. In R. Ramamurthy Ayer v. Raja V. Rajeswara Rao

[(1972) 2 SCC 721], this Court held :

“12. Coming back to the question of withdrawal of

a suit in which the provisions of Sections 2 and 3

of the Partition Act have been invoked we find it

difficult to accede to the contention of the

19

appellant that the suit can be withdrawn by the

plaintiff after he has himself requested for a sale

under Section 2 of the Partition Act and the

defendant has applied to the court for leave to buy

at a valuation the share of the plaintiff under

Section 3. In England the position about

withdrawal has been stated thus, in the Supreme

Court Practice, 1970 at p. 334:

“Before Judgment.— Leave may be refused

to a plaintiff to discontinue the action if the

plaintiff is not wholly dominus litis or if the

defendant has by the proceedings obtained

an advantage of which it does not seem just

to deprive him.”

As soon as a shareholder applies for leave to buy

at a valuation the share of the party asking for a

sale under Section 3 of the Partition Act he obtains

an advantage in that the court is bound thereafter

to order a valuation and after getting the same

done to offer to sell the same to such shareholder

at the valuation so made. This advantage, which

may or may not fulfil the juridical meaning of a

right, is nevertheless a privilege or a benefit which

the law confers on the shareholder. If the plaintiff

is allowed to withdraw the suit after the defendant

has gained or acquired the advantage or the

privilege of buying the share of the plaintiff in

accordance with the provisions of Section 3(1) it

would only enable the plaintiff to defeat the

purpose of Section 3(1) and also to deprive the

defendant of the above option or privilege which

he has obtained by the plaintiff initially requesting

the court to sell the property under Section 2

instead of partitioning it. Apart from these

considerations it would also enable the plaintiff in

a partition suit to withdraw that suit and defeat the

defendant’s claim which, according to Crump J.,

cannot be done even in a suit where the provisions

of the Partition Act have not been invoked.”

20

Yet again in R. Rathinavel Chettiar v. V. Sivaraman [(1999) 4 SCC

89], this Court, stated the law, thus :

“22. In view of the above discussion, it comes out

that where a decree passed by the trial court is

challenged in appeal, it would not be open to the

plaintiff, at that stage, to withdraw the suit so as to

destroy that decree. The rights which have come to

be vested in the parties to the suit under the decree

cannot be taken away by withdrawal of the suit at

that stage unless very strong reasons are shown

that the withdrawal would not affect or prejudice

anybody’s vested rights. The impugned judgment

of the High Court in which a contrary view has

been expressed cannot be sustained.”

29.A right to withdraw a suit in the suitor would be unqualified, if no

right has been vested in any other party. [See Bijayananda Patnaik v.

Satrughna Sahu and Ors. [(1964) 2 SCR 538] and Hulas Rai Baij Nath v.

Firm K.B. Bass & Co. [(1967) 3 SCR 886].

30. If the contention of Mr. Dwivedi that parties had entered into a

comprehensive agreement covering both the suits was correct, there was

absolutely no reason as to why the appellant or others were not made parties

to the second consent decree as well. While entering into a comprehensive

agreement, the parties are bound to see that terms of one agreement do not

21

come in conflict with the terms and conditions of the other. When the

parties have separately entered into more than one agreement, either one is

dependant of the other or both are independent of each other. In the latter

case, signing of the agreement by the parties or their counsel thereon must

be held to be imperative in character.

Amteshwar Anand v. Virender Mohan Singh and Others [(2006) 1

SCC 148], whereupon reliance has been placed by Mr. Dwivedi, is a case of

family settlement. Three agreements entered into therein were found to be

in consonance with each other.

31. Herein, we are not concerned with the effect of the earlier litigation.

We are also not concerned with regard to the conduct of Smt. Veena Nirvani

vis-à-vis the appellant and the other defendants and/or as to whether the

litigation was being fought through the lawyers of the same chamber.

Both the suits were compromised. Indisputably, the date fixed in the

matter was July, 1998. The impugned compromise petition, however, was

filed on 25.04.1998. For the aforementioned purpose, the date was

preponed. Indisputably, the appellant was not informed thereabout. She

was not given any notice of preponement of the date. The question as to

whether the appellant knew thereabout or not is essentially a question of

22

fact to which we would advert to a little later. It is, however, difficult for us

to agree with the High Court as also the submissions of Mr. Dwivedi that

the compromise was a comprehensive one.

32. The learned Additional District Judge, on the basis of the materials

brought on record by the parties arrived at a finding of fact that the

settlement was not a comprehensive one. He, furthermore, opined that none

of the respondents appeared in the witness box to substantiate the terms and

conditions of the compromise nor did they examine any other witness. The

purported circumstances that Smt. Veena Nirwani was at the helm of the

affairs in respect of both the matters sought to be emphasized before us

being not based on any material on record, we are of the opinion that the

finding of the High Court that a comprehensive settlement was arrived at

must be held to be wholly incorrect.

33.The High Court moreover was exercising its jurisdiction under

Article 227 of the Constitution of India. While exercising the said

jurisdiction, the High Court had a limited role to play. It is not the function

of the High court while exercising its supervisory jurisdiction to enter into

the disputed question of fact. It has not been found by the High Court that

the findings arrived at by the learned Additional District Judge were

perverse and/ or in arriving the said findings, the learned Additional District

23

Judge failed and/ or neglected to take into consideration the relevant factors

or based its decision on irrelevant factors not germane therefor. It could

intervene, if there existed an error apparent on the face of the record or, if

any other well known principle of judicial review was found to be

applicable.

{See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and

Another [(2004) 6 SCC 71]}.

It is on the aforementioned backdrop, we may consider the legal

effect of non-signing of the compromise petition by the appellant herein as

also the respondent Nos. 4 to 8 herein.

34. We have noticed hereinbefore that not only the properties were

different, the nature of the litigations was different. Even the parties were

different. Both the compromise petitions do not refer to each other.

Assuming that the parties knew thereabout, it is beyond anybody’s

comprehension as to why signature of all the parties were not obtained for

the aforementioned purpose, if not for any other reason, but to satisfy the

requirements of law.

35. Appeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999

were pending before different courts and in that view of the matter it is

24

difficult to agree with the High Court that only for that purpose, the date in

the appeal was preponed. Even otherwise, in law, they are not members of

the same family. They have been inherited definite share from their

predecessors.

36. The question of estoppel and/or election as also the doctrine of

approbate or reprobate, whereupon reliance has been placed, has exceptions,

one of them being that there is no estoppel against statute.

37.Submission of the learned senior counsel that Veena and the appellant

were in the same boat as would appear from the fact that they had engaged

lawyers from the same chamber and, in fact, the lawyer of the appellant had

no independent practice itself would go to show that she knew about both

the compromise petitions cannot be accepted. A counsel appearing for a

party is expected to be independent. There is no presumption that only

because two lawyers are practicing from the same chamber, they would

breach their confidentiality or commit some act which would amount to

professional misconduct. Only because two compromise petitions were

filed on the same day or Veena was a party to both of them, in our opinion,

would not by itself lead to any inference that appellant also knew about the

second compromise through her counsel.

25

We would, however, deal with the question of her acquiring

knowledge thereof at appropriate stage.

38.Whether the preponement of the date was only at the instance of

Veena or at the instance of both the parties to the consent is a matter which

is of little relevance so far as this Court is concerned inasmuch as the only

issue which would arise for our consideration is the consequences of such

preponement. If the hearing of a case is preponed, it should be done with

notice to all the parties. It is not the case of the first respondent that notice

had been given to all the parties or otherwise also they were aware thereof.

39.In that view of the matter, it is difficult to accept the submission of

Mr. Dwivedi that the appellant is estopped and precluded from raising the

said contention of violation of the principles of natural justice or that only

because he had sold some property, she cannot be allowed to approbate and

reprobate.

Our attention has been drawn to a recent decision in Kashmir Singh v.

Union of India & Ors. [(2008) 7 SCC 259] wherein this Court observed :

“75. By reason of the Notification dated 19-10-

1978, the Central Government has not delegated

its power. The 1966 Act has an extraterritorial

application. It is not in dispute that no law has

been enacted either by the State of Haryana or by

26

the State of Himachal Pradesh. In absence of any

law having been enacted to the contrary, the

functions under the 1966 Act must be performed

by some authority. The Central Government with

the consent of the State of Haryana has merely

nominated the State of Punjab to do so. By reason

thereof, it has not delegated any power. Sub-

section (1) of Section 72 of the 1966 Act

envisages a direction upon the Central

Government. Such a direction has been issued by

reason of the impugned notification. When a

power has been conferred upon the State of Punjab

by the Central Government, it exercises a statutory

power. It would, therefore, not be a case where the

functions of the State Government must be held to

be confined to its territorial jurisdiction.”

The principle enunciated therein is unexceptional but the same has no

application in the factual matrix obtaining in this case.

40.The submission of Mr. Dwivedi that by reason of conduct of the

appellant, they would be deemed to have ratified the second compromise

also cannot be accepted. It is not a ratification of a contract. If ratification

has to be done, all should be parties thereto. If the court had no jurisdiction

to accept the compromise in defiance of the mandatory provisions contained

in Order XXIII Rule 3 of the Code of Civil Procedure, the question of

invoking the doctrine of ratification would not arise. The doctrine of

ratification may be applicable in the realm of private law regime but not for

the purpose of amendment or modification of a decree. Reliance has been

27

placed by Mr. Dwivedi on Jai Narain Parasrampuria v. Pushpa Devi Saraf

[(2006) 7 SCC 756], wherein it has been held :

“27. The Company upon incorporation has

accepted the contract and communicated such

acceptance to the other party. Besides that,

purchase of the property was for the purpose of the

Company. Submissions of Mr Sudhir Chandra that

acquisition of a property for the benefit of the

Company must find place in the articles of

association of the Company, is wholly misplaced.

What is meant by acceptance of the contract by the

Company which is to be warranted by its

incorporation, is that it is not ultra vires the

purpose for which the Company had been

incorporated. The distinction sought to be made by

the learned counsel between Section 27 of the

Specific Relief Act, 1877 and Section 19 of the

1963 Act is not of much significance. Under the

1877 Act, not only ratification and adoption of the

contract was mandatory, such contract was to be

warranted by the terms of the incorporation. The

words “ratified and adopted” have been dropped

from the main section and in Section 19 of the

1963 Act, a proviso has been added that the

company has accepted the contract and

communicated such acceptance to the other party

of the contract. An express ratification of the

contract, therefore, is no longer warranted. In view

of the fact that the Company, in the suit filed

against Verma, sought for a declaration that it was

the owner of the property, the same, in our

opinion, would amount to acceptance of the

contract and communication thereof to the other

party thereto.”

28

The dicta laid down therein itself suggests that the said principles

were laid down in the context of the provisions of the Specific Relief Act.

In T.V.R. Subbu Chetty’s Family Charities v. Raghava Mudaliar [AIR 1961

SC 797], whereupon again Mr. Dwivedi places reliance, this Court applied

the said doctrine against a presumptive reversioner having regard to the fact

and circumstances thereof. We are not concerned with such a case.

41.This brings us to the question of limitation. Article 123 of the

Schedule appended to the limitation Act reads, thus :

“Description of suit Period of

limitation

Time from which period

begins to run

123

.

To set aside a decree passed

ex parte or to re-hear an

appeal decreed or heard ex

parte.

Explanation. -- For the

purpose of this article,

substituted service under

rule 20 of Order V of the

Code of Civil Procedure,

1908 (5 of 1908) shall not

be deemed to be due

service.

Thirty daysThe date of the decree or

where the summons or

notice was not duly

served, when the

applicant had knowledge

of the decree.”

42.There cannot be any doubt that even if an order is void or voidable,

the same must be set aside, as has been held by this Court in M. Meenakshi

29

v. Metadin Agarwal [(2006) 7 SCC 470] and Sultan Sadik v. Sanjay Raj

Subba [(2004) 2 SCC 377].

43.It is not a case where the Court lacked inherent jurisdiction. It had

jurisdiction with regard to subject matter of appeal.

In Rajasthan State Road Transport Corporation and others v. Zakir

Hussain [(2005) 7 SCC 447], this Court held :

“21. It is a well-settled principle of law as laid

down by this Court that if the court has no

jurisdiction, the jurisdiction cannot be conferred

by any order of court. This Court in the case of

A.R. Antulay v. R.S. Nayak, AIR paras 40 to 42

wherein it is, inter alia, held and observed as

under:

‘38[40]. … This Court, by its directions

could not confer jurisdiction on the High

Court of Bombay to try any case which it

did not possess such jurisdiction….

39[41]. … The power to create or enlarge

jurisdiction is legislative in character….

Parliament alone can do it by law and no

court, whether superior or inferior or both

combined can enlarge the jurisdiction of a

court or divest a person of his rights of

revision and appeal. …

40[42]. … But the superior court can always

correct its own error brought to its notice

either by way of petition or ex debito

justitiae. See Rubinstein’s Jurisdiction and

Illegality.’”

30

The limitation, however, in a case of this nature would not begin to

run from the date of knowledge.

In State of Punjab and Others v. Gurdev Singh [(1991) 4 SCC 1], this

Court held:

“10. It will be clear from these principles, the

party aggrieved by the invalidity of the order has

to approach the court for relief of declaration that

the order against him is inoperative and not

binding upon him. He must approach the court

within the prescribed period of limitation. If the

statutory time limit expires the court cannot give

the declaration sought for.”

44.Mr. Jayant Bhushan would submit that the limitation would start to

run from the date of knowledge. It is difficult to accept the said contention.

Article 123 of the Limitation Act is in two parts. In a case where summons

have been served upon a party, the first part shall apply. However, in a case

where the summons have not been served, the second part shall apply. In

this case, summons were served upon the appellant. They knew about the

proceedings. They had engaged a lawyer. Indisputably, the case was fixed

in July 1998. The only question, which would, thus, arise for our

consideration is the effect of the preponement of the date.

31

45.If the compromise has been accepted in absence of all the parties, the

same would be void. But if the same having resulted in grant of a decree,

the decree based on compromise was required to be set aside. The

compromise may be void or voidable but it is required to be set aside by

filing a suit within the period of limitation. {[See Mohd. Noorul Hoda v.

Bibi Raifunnisa & Ors. [(1996) 7 SCC 767]}. Limitation is a statute of

repose. If a suit is not filed within the period of limitation, the remedy

would be barred. As appellant had appeared in the appeal, as indicated

hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e.,

after a gap of four years. There is no reason as to why the factum in regard

to passing of the decree could not have been known in July or soon

thereafter.

46.The High Court has arrived at a finding of fact that the appellant

cannot be said to have acquired knowledge about the passing of the decree

on 7.2.2002, stating

“… If the said compromise deed dated 24.4.1998

was passed by preponing the appeal fixed in July

1998 her counsel Shri Lalit Gupta could have

come to know in July 1998 itself which was the

original date fixed in this appeal that this appeal

was preponed and compromise decree was passed

on 25.4.1998. He could have informed Smt. Sneh

Gupta Respondent immediately thereafter. No

reasons have been given by Shri Lalit Gupta for

32

not deriving the knowledge of order dated

25.4.1998 in July 1998 when the file was

originally fixed and when he was supposed to

appear in the Appellate Court. He has also not

given the reasons why he did not inform his party

after coming to know in July 1998 that the said

appeal was preponed to 25.4.1998 and was

decided as compromised.”

It is interesting to notice that the appellant while examining herself as

AW-2, accepted that a compromise had been arrived at Panipat in April

1998, stating :

“It is correct that a compromise settlement was

arrived at in Panipat in April 1998 but I do not

know details of it. I do not know whether in

pursuance of that compromise, all the litigation

were settled and withdrawn from different

courts…”

47.Mr. Jayant Bhushan has placed strong reliance upon a judgment of

this Court in Nahar Enterprises v. Hyderabad Allwyn Ltd. & Anr. [(2007) 9

SCC 466]. He placed reliance on the following paragraphs :

“4. The respondent herein filed a suit for recovery

of a sum of Rs.1,87,904.62 with future interest at

the rate of 18.5% per annum against the appellant.

It appears that in the summons sent to the

appellant, 10-10-1988 was fixed for his

appearance. However, as the summons had not

been served, the court adjourned the matter to 2-

12-1988. Summons were served on the appellant

33

on 14-10-1988, but according to him a copy of the

plaint was not annexed thereto. He sent a telegram

on 17-10-1988 and also a letter to the court

concerned but, admittedly, the same was not

responded to. Without issuing any further

summons fixing another date for his appearance,

the court fixed a date and having found the

appellant absent on that date, fixed another date

for ex parte hearing. On 13-12-1988 the suit was

decreed with costs.

5. An execution case was filed by the respondent

herein to execute the said decree. According to the

appellant, the bailiff came to serve a copy of

summons on him on 2-12-1991. The said

summons having been served upon the appellant,

he came to learn that ex parte decree has been

passed. An application for setting aside the said ex

parte decree was filed on 13-12-1991. By an order

dated 17-1-1992 the learned Judge, City Civil

Court, Hyderabad dismissed the said application

inter alia opining:

(1) …

(2) …

(3) An ex parte decree having been passed on

13-12-1988 and an application for setting

aside the ex parte decree having been filed

on 13-12-1991, the same was barred by

limitation.

XXX XXX XXX

12. The third ground on which the learned trial

Judge dismissed the application for setting aside

the ex parte decree was that it was barred by

limitation. The said ground in our opinion, is also

without substance. The summons had not been

duly served upon the appellant inasmuch as the

provisions of Order 5 Rule 2 CPC or provisions of

34

Order 9 Rule 6(1)(c) had not been complied with.

In that view, the second part of Article 123, in

terms whereof an applicant would be deemed to

have knowledge of passing of the said ex parte

decree would be the date from which the limitation

will begin to run, would be attracted in the instant

case and not the first part thereof.”

In that case, the copy of the plaint was not annexed with the

summons. Summons was served after the date fixed in the suit expired.

The Court had in that situation under a legal obligation to serve another

summons fixing another date of hearing in terms of Order V, Rule 2 of the

Code of Civil Procedure. It was in the aforementioned fact situation, the

Court held that the summons served was not in accordance with law and,

thus, the second part shall apply. Such is not the case here.

Reliance has also been placed by Mr. Jayant Bhushan on a decision of

this case in Manick Chandra Nandy v. Debdas Nandy & Ors. [(1986) 1 SCC

512]. The law in that case itself was laid down in the following terms :

“11. Under Article 123 in the Schedule to

the Limitation Act, 1963, the period of limitation

for making an application to set aside a decree

passed ex parte is thirty days from the date of the

decree or when the summons or notice was not

duly served, when the applicant had knowledge of

the decree. The question of knowledge of the

decree by the applicant only arises where the

summons or notice was not been duly served.”

35

However, in the facts of that case, it was found that summons had not

been served. In Pannalal v. Murarilal [(1967) 2 SCR 757], this Court held :

“Under Article 164 of the Indian Limitation Act,

1908, the period of limitation for an application by

a defendant for an order to set aside a decree

passed ex-parte was 30 days from “the date of the

decree or when the summons was not duly served,

when the applicant had knowledge of the decree”.

The onus is on the defendant to show that the

application is within time and that he had

knowledge of the decree within 30 days of the

application. If the defendant produces some

evidence to show that the application is within

time, it is for the plaintiff to rebut this evidence

and to establish satisfactorily that the defendant

had knowledge of the decree more than 30 days

before the date of the application.”

48.Mr. Jayant Bhushan, then submits that as the principles of natural

justice had been violated, the judgment would be a nullity. Strong reliance

in this behalf has been placed on A.R. Antulay v. R.S. Nayak & Anr.

[(1988) 2 SCC 602], wherein, it was stated :

“55. Shri Jethmalani urged that the directions

given on February 16, 1984, were not per

incuriam. We are unable to accept this submission.

It was manifest to the Bench that exclusive

jurisdiction created under Section 7(1) of the 1952

Act read with Section 6 of the said Act, when

brought to the notice of this Court, precluded the

36

exercise of the power under Section 407 of the

Code. There was no argument, no submission and

no decision on this aspect at all. There was no

prayer in the appeal which was pending before this

Court for such directions. Furthermore, in giving

such directions, this Court did not advert to or

consider the effect of Anwar Ali Sarkar case

which was a binding precedent. A mistake on the

part of the court shall not cause prejudice to

anyone. He further added that the primary duty of

every court is to adjudicate the cases arising

between the parties. According to him, it is

certainly open to a larger Bench to take a view

different from that taken by the earlier Bench, if it

was manifestly erroneous and he urged that the

trial of a corrupt Chief Minister before a High

Court, instead of a judge designated by the State

Government was not injurious to public interest

that it should be overruled or set aside. He invited

us to consider two questions: (1) does the

impugned order promote justice? and (2) is it

technically valid? After considering these two

questions, we are clearly of the opinion that the

answer to both these questions is in the negative.

No prejudice need be proved for enforcing the

fundamental rights. Violation of a fundamental

right itself renders the impugned action void. So

also the violation of the principles of natural

justice renders the act a nullity. Four valuable

rights, it appears to us, of the appellant have been

taken away by the impugned directions:

‘(i)The right to be tried by a Special Judge in

accordance with the procedure established

by law and enacted by Parliament.

(ii)The right of revision to the High Court

under Section 9 of the Criminal Law

Amendment Act.

37

(iii)The right of first appeal to the High Court

under the same section.

(iv)The right to move the Supreme Court under

Article 136 thereafter by way of a second

appeal, if necessary.’”

We are concerned herein with a question of limitation. The

compromise decree, as indicated hereinbefore, even if void was required to

be set aside. A consent decree, as is well known, is as good as a contested

decree. Such a decree must be set aside if it has been passed in violation of

law. For the said purpose, the provisions contained in the Limitation Act,

1963 would be applicable. It is not the law that where the decree is void, no

period of limitation shall be attracted at all.

In State of Rajasthan v. D.R. Laxmi [(1996) 4 SCC 445], this Court

held :

“10. The order or action, if ultra vires the power,

becomes void and it does not confer any right. But

the action need not necessarily be set at naught in

all events. Though the order may be void, if the

party does not approach the Court within

reasonable time, which is always a question of fact

and have the order invalidated or acquiesced or

waived, the discretion of the Court has to be

exercised in a reasonable manner. When the

discretion has been conferred on the Court, the

Court may in appropriate case decline to grant the

relief, even if it holds that the order was void. The

38

net result is that extraordinary jurisdiction of the

Court may not be exercised in such circumstances.

It is seen that the acquisition has become final and

not only possession had already been taken but

reference was also sought for; the award of the

Court under Section 26 enhancing the

compensation was also accepted. The order of the

appellate court had also become final. Under those

circumstances, the acquisition proceedings having

become final and the compensation determined

also having become final, the High Court was

highly unjustified in interfering with and in

quashing the notification under Section 4(1) and

declaration under Section 6.”

Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470],

this Court held :

“18. It is a well-settled principle of law that even a

void order is required to be set aside by a

competent court of law inasmuch as an order may

be void in respect of one person but may be valid

in respect of another. A void order is necessarily

not non est. An order cannot be declared to be

void in a collateral proceeding and that too in the

absence of the authorities who were the authors

thereof. The orders passed by the authorities were

not found to be wholly without jurisdiction. They

were not, thus, nullities.”

Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377],

this Court held :

39

“39. An order may be void for one and voidable

for the other. An invalid order necessarily need not

be non est; in a given situation it has to be

declared as such. In an election petition, the High

Court was not concerned with the said issue.”

49.Even otherwise, we do not think that any error has been committed by

the High Court in arriving at the finding that the appellant had knowledge of

the passing of the compromise decree much earlier. She did not file any

application for condonation of delay. She filed two more applications for

recall of the order dated 6.11.2004 in other enacted appeals. Those

applications were also filed after expiry of the period of limitation and none

of those applications were also accompanied with an application for

condonation of delay. In absence of any application for condonation of

delay, the Court had no jurisdiction in terms of Section 3 of the Limitation

Act, 1963 to entertain the application for setting aside the decree. [See

Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66]; and

Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52].

50.For the reasons aforementioned, there is no merit in this appeal. The

same is dismissed accordingly. There shall, however, be no order as to

costs.

40

………………………….J.

[S.B. Sinha]

..…………………………J.

[Dr. Mukundakam Sharma]

New Delhi;

February 17, 2009

41