SCA/2071320/2007 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 20713 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MADHUBHAI JESANGBHAI VASAVA - Petitioner(s) Versus VASANTBHAI MANJAPPA HEGDE POA OF SURESHBHAI RAMA HEGDE & 2 - Respondent(s) ========================================================= Appearance : MR PUSHPADATTA VYAS for Petitioner(s) : 1, MS PJ DAVAWALA for Respondent(s) : 1 - 2. MR MM SAIYED for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 23/09/2008 ORAL JUDGMENT 1. Heard learned advocates appearing for the parties. SCA/2071320/2007 2/6 JUDGMENT 2. The petitioner is the original defendant in regular civil suit No.70/2001 filed by the respondents no. 1 and 2 herein before the learned Civil Judge(JD) Ankleshwar. The petitioner has challenged an order dated 11.4.2007 passed by the learned Judge on his application exh. 108 and 110. 3. Shortly stated facts leading to the present petition are as follows : 3.1 With respect to certain landed property, respondents No. 1 and 2 have filed above-mentioned civil suit against the petitioner. Parties had contested upto notice of motion at exh.5 as well as Appeal from Order stages. Thereafter, it appears that there was an attempt to settle the disputes. A compromise pursis duly containing thumb impression of the petitioner was presented before the Court on 7.4.2007. Proceeding was thereafter kept on 14.4.2007 for further orders. It was the case of the petitioner that consent terms were one sided and he was made to put his thumb impression thereon without full understanding. Upon learning the true effect of the consent terms, he approached the learned Judge on 11.4.2007 by filing applications exh. 108 and 110 in the said suit. In application exh. 108, he prayed that the proceedings be taken up and preponed SCA/2071320/2007 3/6 JUDGMENT from 14.4.2007 to 11.4.2007. On the same date, learned Judge passed order thereon stating that there was written compromise presented by the parties and only for completing the formalities, suit is adjourned and therefore, present application cannot be accepted. On the same day, the petitioner filed another application exh.110 and stated inter-alia that on 7.4.2007 compromise pursis has been produced and for compromising the suit, next date of 14.7.2007 is fixed. Compromise has not yet been accepted and no final order passed thereon. Compromise is not acceptable to the defendant and same may be treated as cancelled and the suit may be fixed for evidence. This application also came to be dismissed by the learned Judge on the same day stating that before the open Court on 7.4.2007, the parties had agreed to compromise. Final order is only a mere formality. Prayers therefore, cannot be accepted. At this stage, the petitioners approached this Court in the present petition. 4. The petitioner has joined as respondent No.3 his erstwhile advocate who was representing him before the trial Court. Said respondent No.3 has filed affidavit dated 6.2.2008 along with which a receipt stated to have been given by the petitioner in token of having received sum of Rs.3,50,000/- for compromising the suit is produced. SCA/2071320/2007 4/6 JUDGMENT 5. Respondents No.1 and 2 also have strongly opposed the petition. 6. Considering the above facts and upon hearing the learned advocate as well as perusing the material on record, it can be seen straightway that admittedly there was a compromise before the trial court on 7.4.2007. No final order on the pending suit was passed on that date. There is discrepancy about what actually happened on 7.4.2007. It is the case of the respondents that final order on the suit was already passed and only for statistical purpose, the suit was fixed for declaration of the order on 14.4.2007. However, this is contrary to what the learned Judge recorded in his impugned order dated 11.4.2007. In the said order, learned Judge has nowhere referred to this aspect but has only stated that compromise was arrived at on 7.4.2007 and final order is a mere formality clearly indicating that order was yet to be passed on 14.4.2007. 7. Under the circumstances, when the petitioner approached the trial Court even before the final order could be passed on a compromise between the parties, it was at-least the duty of the learned Judge to examine the grievances of the petitioner and pass reasoned order as may be found necessary after verifying all aspects of SCA/2071320/2007 5/6 JUDGMENT the matter. Instead, the learned Judge summarily disposed of applications exh. 108 and 110 on a short ground that parties had already compromised the disputes in the open Court. Final order is a mere formality. No indulgence therefore, can be granted. 8. I am afraid such an approach would not be valid. If the stand of the petitioner was either dishonest, untenable or in any manner not acceptable, it was always open for the learned Judge to record in the order and reject the applications. However, to state that since the compromise was admitted in the open Court, no further application can be entertained would not be the correct approach. If the petitioner made out a case for misrepresentation, fraud or any such ground it would vitiate the compromise itself. It was well within his right to move the learned Judge before the suit was disposed of. In my opinion, therefore, learned Judge committed an error in passing the impugned order dated 11.4.2007. Therefore, without going into the question of role played by erstwhile advocate of the petitioner and without going into question of discrepancy in the Rojkam, this petition is disposed of by striking down both orders dated 11.4.2007 passed below exh. 108 and 110. 9. Application exh. 110 stands revived and shall be SCA/2071320/2007 6/6 JUDGMENT reheard and disposed of by the learned Judge after giving reasonable opportunity to both the sides to produce necessary material and hearing their representatives. This may be done expeditiously and preferably within three months from the date of receipt of a copy of this order. I have expressed no opinion on the allegations leveled by either sides. Needless to say, the decree does not survive in eye of law. 10.Amount of Rs. 15,000/- stated to have been deposited by the petitioner pursuant to order 16.8.2007 dated passed by this Court shall be refunded to the petitioner. 11.The petition is disposed of. Rule made absolute accordingly. R & P be sent back. (Akil Kureshi,J.) (raghu)