1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.453 OF 2009 IN CHAMBER SUMMONS NO. OF 2008 IN SUIT NO.2703 OF 2006 Karan Denis Waghwani .. Appellants Vs. Rukhmani Benumal Wadhwani and Ors.,Mumbai .. Respondents Ms.Soma Singh with Mr.Mahesh Londhe i/b M/s.Sanjay Udeshi and Co. for the appellants Mr.S.K. Dubey for respondent no.1 CORAM : J. N. PATEL & Smt.R.P.SONDURBALDOTA, JJ DATE : 15TH OCTOBER, 2009 P.C. : 1. Heard the learned counsel for the parties. 2. Admit. Counsel for respondents waives service on their behalf. 3. By consent of the parties, the appeal is taken up for final hearing. 2 4. This appeal has been filed by the applicant being aggrieved by the order dt.24.10.08 passed by the learned single Judge in Draft Chamber Summons filed in suit no.2703 of 2006 after it was disposed by the learned single Judge on the parties to the suit filed Consent Terms dt.6.10.08. 5. Initially, the suit came to be filed by the respondent (original plaintiff) Rukmani Bherumal Wadhwani against her daughter Veena Saikand, her son, Sandeep Sikand and one Mahesh Babani, son-in-law of original defendant no.1 wherein the respondent (original plaintiff) sought the judgment and decree directing the defendants to restore to the plaintiffs the items of jewelery set out in the statement annexed at Exhibit B ‘ ’ hereto which is valued at Rs.10,00,000/- or in the alternative the Defendants be ordered and decreed to pay to the plaintiff the sum of Rs. 10,00,000/- along with interest at such rate as this Hon ble Court deems ’ fit, proper and necessary and for a permanent prohibitory injunction restraining the defendants, by themselves and/or through their servants, agents or representatives from entering into or remaining upon the suit premises and for other ancillary reliefs along with costs. 6. During the pendency of the suit, a notice of motion was taken out by the plaintiff i.e. notice of motion no.3219 of 2006 wherein the learned single Judge by order dt.12.10.06 granted ad interim relief in favour of the 3 plaintiff in terms of prayer clause a(i) to take effect from 1.4.07 and in the meantime, the defendants were restrained from permitting any visitors in, to, or upon the suit flat and shall not utilize the garage which the plaintiff was held to be entitled to use exclusively. The said order was carried in appeal and came to be confirmed. Thereafter, the defendants took out the Chamber Summons no.254 of 2007 in Suit No.2703 of 2006 wherein they came up with a prayer that the plaintiff is a person of unsound mind and incapable of suing and therefore, she should not have instituted the suit herself. The Chamber Summons came to be dismissed by the learned single Judge by order dt.1.3.07 holding that it was entirely malafide and the learned single Judge imposed cost of Rs.10,000/-. The same was carried in appeal. The Division Bench of this court by order dt.5.7.07 passed an interim order wherein they recorded an arrangement entered between the parties and it appears that the appeal is pending for decision though it was directed to be placed for admission on 9.10.08. The learned counsel for the parties are not able to state as to what happened to the aforesaid appeal in the matter. 7. It appears that during the pendency of the suit, the parties filed consent terms and sought the court to pass decree in terms of consent terms. In the Consent Terms entered upon between the parties to the suit, it has been specifically contended that during the pendency of the present suit, her son Mr.Ramesh Wadhwani and grandson have fraudulently obtained 4 Deed of Gift dated 4.10.07 duly registered on 5.10.07 under Registration No.BDR9/9595 on 5.10.07 before the Sub-Registrar of Assurances of Bandra, Bombay as they have agreed to settle at Bombay at the suit Flat No.12 and have also agreed to provide medicines, perform last rites of the plaintiff and also take care of the plaintiff during rest of her life and that the son of the plaintiff, Mr.Ramesh Wadhwani and his son Mr.Karan Wadhwani are not willing to come and settle with the plaintiff and therefore, the plaintiff has revoked Deed of Gift dated 4.10.07 by way of Declaration dated 23.09.08 which has been notarized and contains that the deed of gift was obtained by playing fraud and it also suffers from various defects such as there was no proper acceptance, possession was not delivered and also not witnessed properly. The consent terms also recorded that the plaintiff has relinquished, released and surrendered all her right, title, claim and possession in respect of the suit Flat No.12 of 1460 sq.ft (built up) as well as Garage No.200 sq.ft. (built up), as well as Shares under Share Certificate No.3 and garage thereon in favour of defendant no.1 permanently on account of her services being provided as well as on account of consideration also paid by the defendant no.1 to the plaintiff on account of medicines, hospitalization maintenance and other various expenses as well as expenses incurred against the said flat on various accounts. It was also recorded in favour of defendant no.1 that she shall be absolute owner of the said flat no.12 and shares along with Garage and the society is irrevocably permitted to record the name 5 of the Defendant No.1 in the records of the share certificate and other relevant records of the society and hereafter the defendant no.1 shall be absolute owner of the said flat no.12 along with shares and Garage thereon at CTS No.289 and clause no.8 of the said consent terms specifically records that this consent terms shall also operate as agreement of transfer/sale in respect of flat no.12 and shares thereof along with Garage by the plaintiff in favour of defendant no.1. 8. The learned single Judge by his order dt.10.10.08 recorded that the Consent Terms dt.6.10.08 signed by the plaintiff, defendant no.1 and their respective advocates are tendered in the court and that the plaintiff and defendant no.1 are present in the court. They admit their signatures and they admit that the contents of the Consent Terms have been explained to them in Hindi and on the prayer made by the learned advocates appearing for the parties, passed the order that the Consent Terms as above are taken on record and marked X . There shall be decree in ‘ ’ terms of the consent terms, with no order as to costs. Refund of court fees is granted as per rules. Parties to comply with clause (8) of the Consent Terms as regards registration under the Indian Registration Act and vacated all the interim / ad-interim orders passed earlier. 9. It is thereafter, that the applicant took out a Chamber Summons No.1720 of 2008 in Suit No.2703 of 2006 seeking a relief that the applicant i.e. 6 Karan Denis Wadhwani be permitted by an order of the court to intervene in the suit as party defendant and for other ancillary reliefs. This came to be rejected by the learned single Judge by his order dt. 24.10.08. 10. The learned counsel appearing for the appellant submitted that the learned single Judge has failed to take into consideration that the Consent Terms adversely affects the interest of the appellant/applicant in so far as the suit flat is concerned i.e Flat No.12, First Floor, Sea Pebbles Premises Co-op. Society, 75 Chimbai Road, Off Carter Road, Bandra West, Mumbai 400 050 of which he has become owner by virtue of gift deed dt.4.10.07 which is duly registered with the Sub Registrar at Andheri and therefore, he should be permitted to intervene in the suit as party defendant and placed reliance on the decision of the Supreme Court in the case of Arjan Singh v. Punit Ahluwalia and Others reported in (2008) 8 Supreme Court Cases 348, Devineni Tirupathirayudu and Ors. v. Surapaneni Suramma (D) By Lrs. and Ors. Reported in JT 2009 (5) SC 103 and Dadu Dayal Mahasabha vs. Subhash Arya reported in (1990) 1 SCC 189. In support of her contention that the provisions of Order 23 Rule 3 of the Code of Civil Procedure contemplates that for the purpose of passing Consent Terms, the court has to be satisfied about the genuineness of the terms and that the compromise was lawful and, therefore, as fraud was practiced upon the court, the grant of decree in 7 terms of consent terms is not proper and if the said consent terms are allowed to be acted upon by the plaintiff and defendant no.1 who are the respondents in this appeal it would result in causing injustice to the present appellant / applicant. The authorities cited by the learned counsel for the parties are not germane to the issue. 11. It is submitted by the learned counsel for the appellant that the consent terms entered between the parties expressly provides for revocation of deed of gift by declaration made by the plaintiff and thereby adversely affects the rights of the appellant / applicant. It is submitted that the procedure adopted by the parties while filing consent terms is unlawful and the court ought to have taken into consideration that the gift deed cannot be revoked in the said manner and cited the case of Sheel Arora v. Madan Mohan Bajaj and Ors. Reported in (2007) 5 Mh.L.J. 848 and, therefore, as the appellant / applicant was aggrieved, he has every right to be impleaded as party defendant in the suit, as that is the only mode in which he can challenge the consent terms. 12. The learned counsel appearing for the respondents placed reliance on the decision in the case of Punjab and Haryana High Court in the Regular Second Appeal No.3717 of 1999 between Ram Kishan and others vs. Smt.Sardari Devi and others and submitted that the only remedy available to the appellant is to file a suit. 8 13. We have gone through the impugned order and find that the learned single Judge has considered the case in proper perspective. In view of the fact that the suit has been decreed in terms of Consent Terms dt. 6.10.08, the relief sought and questions raised in the Chamber Summons cannot be considered and that the appellant can very well resort to appropriate proceeding. The learned single Judge also found that as the suit has already been disposed of, the court has no jurisdiction to allow the present applicant to intervene in the present suit as party defendant on account of grant of decree in terms of consent terms as the court has become functus officio. 14. In so far as Order 23 Rule 3 and 3(a) is concerned, it pertains to the rights of the parties to the suit. In so far as third party is concerned, we are of the view that the consent terms arrived at between the parties to the suit does not in any manner affect the legal rights of the third party which might have been compromised or settled between the parties to the suit in respect of the suit property, as in the present case, the appellant is claiming to have become owner of the suit flat by virtue of gift deed which as per the consent terms stands revoked by virtue of the declaration made by the respondent / plaintiff. Needless to mention that compromise decree cannot be enforced against a person who is no party to it. 9 15. In the facts and circumstances of the case what we find is that the appellant has a cause of action to file a suit against the parties to the consent terms if at all he finds that the consent terms if acted upon, may result in creating clog over his title to the suit flat which can be independently established, as it can be challenged on any ground on which an agreement can be challenged. Therefore, we do not find that the learned single Judge has committed any error or illegality in dismissing the Chamber Summons by directing the appellant / applicant to seek appropriate legal aid. Appeal stands disposed of accordingly with no order as to costs. 16. The learned counsel for the appellant submits that as the appellant is residing outside India, she will require some time to seek instructions about initiating further proceedings in the matter and, therefore, interim order of status quo which was continuing till today, may be continued for a further period of 6 weeks. Interim order of status quo to continue for a period of 6 weeks. ( J. N. Patel, J) (Smt.R.P.Sondurbaldota, J) 10