SCA/3117/2008 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3117 of 2008 To SPECIAL CIVIL APPLICATION No. 3120 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 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? ========================================================= MANRAO RASIKLAL JAISWAL - Petitioner(s) Versus MINAKSHIBEN RASIKLAL JAISWAL & 15 - Respondent(s) ========================================================= Appearance : MS MEGHA JANI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1 - 2,4 - 6, 8, 15, MR BHARAT JANI for Respondent(s) : 1 - 7. - for Respondent(s) : 9, 14, MR PARTHIV B SHAH for Respondent(s) : 10 - 13. None for Respondent(s) : 0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/08/2008 ORAL JUDGMENT 1. As common question of law and facts arise in these petitions, they are being disposed of by this common judgment and order. SCA/3117/2008 2/9 JUDGMENT 2. Heard Mr.Megha Jani, learned Advocate for the respective petitioners and Mr.P.M.Thakkar, learned Senior Advocate with Mr.Parthiv Shah, learned Advocate for respondent Nos.9 and 14 and Mr.Pranav Raval, learned Advocate appearing for respondent Nos.1 to 7 in each of the petitions. 3. In all these petitions, the respective petitioner – original plaintiff No.5 – Manrao Jaiswal has challenged the orders passed below Exh.30 in Civil Suit No. 391 of 2004; Exh. 26 in Civil Suit No.392 of 2001; Exh.25 in Civil Suit No.393 of 2001 and Exh.25 in Civil Suit No.394 of 2001 and Exh.47 in Civil Suit No.391 of 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001. It appears vide orders passed below Exh.30 in Civil Suit No. 391 of 2004; Exh. 26 in Civil Suit No.392 of 2001; Exh.25 in Civil Suit No.393 of 2001 and Exh.25 in Civil Suit No.394 of 2001, the learned trial Court has passed the order to amend the plaint by deleting original defendant Nos.1,8 and 9 in respective Suits. Mr.P.M.Thakkar, learned Advocate appearing on behalf SCA/3117/2008 3/9 JUDGMENT of the contesting respondents submitted that they would not have any objections if order passed below Exh.30 in Civil Suit No. 391 of 2004; Exh. 26 in Civil Suit No.392 of 2001; Exh.25 in Civil Suit No.393 of 2001 and Exh.25 in Civil Suit No.394 of 2001 is quashed and set aside and the matter is remanded to the learned trial Court to decide and dispose of the same after giving opportunity to all concerned and submissions made on behalf of the respective parties. So far as the challenge to the orders passed below Exh.47 in Civil Suit No.391 of 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001 is concerned, it is the contention on behalf of Ms.Megha Jani, learned Advocate for the petitioner – original plaintiff No.5 that considering Order XXIII Rule-1 Sub-Rule(5); Order XXIII Rule 3 and more particularly provisio to Order XXIII Rule 3, the learned Trial Court ought not to have allowed Exh.47 in Civil Suit No.391 of 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001, when compromise is disputed by one of the plaintiff – SCA/3117/2008 4/9 JUDGMENT petitioner – original plaintiff No.5. According to her, even consent terms qua some of the plaintiffs could not have been recorded by the learned trial Court as it will ultimately affect the rights of the petitioner. She has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Star Construction and Transport Co. and Ors. V/s. The India Cements Ltd. reported in AIR 2001 SC 941 in support of her submission that where there is varied compromise and/or consent terms, they are required to be considered before even recording compromise and/or passing any order on the said consent terms. 4. Mr.Thakkar, learned Senior Advocate appearing on behalf of the contesting respondents has submitted that as such at present only consent terms qua original plaintiffs except original plaintiff No.5 – petitioner herein is recorded and no further order has been passed meaning thereby no consent decree has been passed by the learned trial Court on the basis of said consent terms and the matter is fixed for hearing and all the questions which are raised in the present Special Civil Applications; the SCA/3117/2008 5/9 JUDGMENT contentions and submissions made by the petitioner can be dealt with by the learned trial Court at the time the matter is taken up by the learned trial Court for passing further orders and/or passing consent decree on the basis of aforesaid consent terms and therefore, it is requested not to entertain present Special Civil Applications at this stage. 5. Having heard the learned Advocates appearing on behalf of the respective parties and considering the orders passed below Exh.47 in Civil Suit No.391 of 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001, which are impugned in the present Special Civil Applications, it appears to the Court that the contentions and submissions which are raised on behalf of the respective petitioners in the present petitions with respect to Order XXIII Rule 1 Sub-Rule (5); Order XXIII Rule 3; and more particularly provisio to Order XXIII Rule 3, are all required to be considered by the learned trial Court at the time when the matter is taken up by the learned trail Court for further considering consent SCA/3117/2008 6/9 JUDGMENT terms and passing consent decree and at that stage it will be open for the petitioner one of the original plaintiff to raise all contentions which are raised in the present Special Civil Applications and other submissions available to them under the law and same are required to be considered by the learned trial Court before passing consent decree on the basis of consent terms submitted by some of the plaintiffs. Therefore, at this stage present Special Civil Applications qua challenging the orders passed below Exh.47 in Civil Suit No.391 of 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001 are not required to be entertained. So far as the challenge to order below Exh.30 in Civil Suit No. 391 of 2004; Exh. 26 in Civil Suit No.392 of 2001; Exh.25 in Civil Suit No.393 of 2001 and Exh.25 in Civil Suit No.394 of 2001 are concerned, there is consensus between the learned Advocates appearing on behalf of the respective parties that said order be quashed and the matter be remanded to the learned trial Court to decide it afresh after giving opportunity to all concerned. SCA/3117/2008 7/9 JUDGMENT 6. For the reasons stated above, all the petitions succeeds in part. The orders passed below Exh.30 in Civil Suit No. 391 of 2004; Exh. 26 in Civil Suit No.392 of 2001; Exh.25 in Civil Suit No.393 of 2001 and Exh.25 in Civil Suit No.394 of 2001 are quashed and set aside and the matter is remanded to the learned trial Court for deciding the application Exh.30 in Civil Suit No. 391 of 2004; Exh. 26 in Civil Suit No.392 of 2001; Exh.25 in Civil Suit No.393 of 2001 and Exh.25 in Civil Suit No.394 of 2001 afresh in accordance with law and on merits after giving opportunity to all concerned. So far as the challenge to orders passed by the learned trial Court below Exh.47 in Civil Suit No.391 of 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001 are concerned, present Special Civil Applications are not entertained at this stage by observing that it will be open for the petitioner to make all submissions which are raised in the present Special Civil Applications while challenging the orders passed below Exh.47 in Civil Suit No.391 of SCA/3117/2008 8/9 JUDGMENT 2001; Exh.43 in Civil Suit No.392 of 2001; Exh.42 in Civil Suit No.393 of 2001 and Exh.41 in Civil Suit No.394 of 2001 inclusive of applicability of Order XXIII Rule 1 Sub-Rule (5); Order XXIII Rule 3 and provisio and explanation thereto of the C.P.C. and considering the submissions with respect to validity of the compromise / consent terms even by some of the original plaintiffs, the learned trial Court is directed to consider all submissions before passing any further order on the consent terms submitted by some of the plaintiffs and passing consent decree on the basis of said consent terms. All these questions are kept open and even it will be open for the contesting respondents also to make submission that qua some of the plaintiffs or all the plaintiffs consent decree can be passed and all these question are kept open and same are directed to be considered by learned trial Court before passing any final decree on the basis of consent terms. Rule is made absolute to the aforesaid extent in each of the Special Civil Applications. There shall be no order as to costs. Direct service is permitted. SCA/3117/2008 9/9 JUDGMENT [M.R.Shah,J.] satish