Case: Hussainbhai Allarakhbhai Dariaya  Vs. State Of Gujarat

the time being in force, then it will be a "representative suit" for the purpose of Order 23 Rule 3B of the Code, having regard to clause (d) of the Explanation. It is submitted that as the decree in a suit to which a Jamat is a party, would bind all members of the Jamat who are not parties to such suit, the suit by or against the Jamat is to be considered as a representative suit for the purpose of clause (1) of Rule 3B of Order 23 and consequently a compromise could be entered in a suit to which the Jamat is a party, only with the leave of the court granted after giving notice to all the members of the Jamat. It is submitted that as the leave of the court was not obtained for entering into such a compromise and as the court did not give notice to persons interested in the suit, the compromise was not a valid compromise and any person affected by the said compromise could challenge the same by filing a second appeal having regard to the provisions of Order 43 Rule 1A(2). The appellants submit that category (d) under the Explanation to Rule 3B was ignored by the High Court. 12. On the other hand, the respondents contended that the suit by the Jamat was not a representative suit. They submitted that the appellants admitted that the suit of the Jamat did not fall under categories (a) to (c) enumerated in the Explanation to Rule 3B. They contended that for a suit to fall under clause (d) of the Explanation to Rule 3B, it is necessary that the decree made in such suit should bind a person who is not a party to the suit by virtue of the special provisions in the Code or any other law. It is submitted that there is no provision in the Code or any other law which make the decree in a suit by or against the Jamat, binding on a person who is not a party to the suit. It is submitted that the argument of the appellants if accepted, would mean that even where a compromise is entered in suits to which a company (incorporated under the Companies Act) or a co-operative society (registered under the Cooperative Societies Act) or a society (registered under the Societies Registration Act) is a party, it would be necessary to treat them as representative suits and issue notice to all members thereof on the ground that the decree passed in such suits, would bind members of such company, co-operative society or society, who are not parties to the suit. The respondents submitted such a position would be untenable. 13. It is unnecessary to examine the question as to the constitution of the Jamat or the question whether a suit by or against the Jamat will bind all members of the Jamat or the question whether the members of the Jamat will be so bound by virtue of any specific provision in the Code or any other law, as these questions do not arise in this case. 14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where either plaintiff-appellants or the defendant-respondents were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (Memo - Ex.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets of non-parties, while dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise between non-parties, as the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of any non-party, as there is no appealable order or decree.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where eithernts were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (MemoEx.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets ofwhile dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise betweenas the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of anyas there is no appealable order or decree.