Case: Milind Moreshwar Kowley Vs. Manhohar Bhaskar Kowley(D)Thr.Lrs

1. These appeals by special leave are directed against the common judgment and order of the High Court of Judicature at Bombay in Civil Appeal Nos. 277 of 1994 and 368 of 1994. By its impugned judgment and order a Division Bench of the High Court affirmed the orders of the learned trial judge on the original side of the High Court dated November 11, 1993 dismissing Notice of Motion Nos.2141 and 2383 of 1988 and 2392 of 1989. The learned Judge, however, allowed Chamber Summons No.294 of 1989 filed by the plaintiff in Suit No.618 of 1967. In Civil Appeal No. 4730 of 1996 Milind Moreshwar Kowley is the appellant. He is the plaintiff in Suit No.2493 of 1988 and the applicant in Notice of Motion No.2392 of 1989. His appeal before the Division Bench of the High Court was registered as Civil Appeal No.277 of 1994. The appellants in Civil Appeal No.4731 of 1996 were defendants 1 and 2 in Suit No.618 of 1967, who had filed Notice of Motion Nos.2141 and 2383 of 1988 before the trial court which were dismissed by the common Order of November 11, 1993. Their appeal was registered as Civil Appeal No.368 of 1994. At the threshold, we may notice that the Notice of Motion were taken out for grant of interim orders which were rejected by the trial court and affirmed by the Appellate Bench of the High Court.

Reasoning:
13. Having considered all aspects of the matter, we find no reason to interfere with the concurrent findings recorded by the trial court as well as the Appellate Bench of the High Court. We, therefore, find no merit in Civil Appeal No.368 of 1994. We shall not take up for consideration Notice of Motion No.2392 of 1989 filed by plaintiff Milind in Suit No. 2493 of 1988. We may recapitulate some of the facts. The preliminary decree was passed on September 17, 1975 and the final decree followed on February 28, 1980. The decree was varied to some extent on August 13, 1985, though as found by the courts below the variation was only with regard to the mode of sale. In the earlier consent decree only the defendants were required to bring purchasers for the plots in question but under the modified decree as passed on August 13, 1985 even the plaintiff was permitted to bring purchasers apart from the defendants. The rest of the terms and conditions were substantially the same with extension of time granted to complete the formalities.14. The plaintiff Milind attained majority on November 17, 1981. He filed a Suit on August 16, 1988 i.e. roughly 7 years after attaining majority. While considering the prayer for grant of interim relief, the Court considered the limitation aspect of the matter, not with a view to pronounce a final verdict on that question, but with a view to considering the justification for passing an interim order as prayed for in the Notice of Motion. The plea of the plaintiff was that he did not know about the pendency of the suit and the passing of the decree in the suit namely, Suit No.618 of 1967. For the first time, he came to know about the passing of the decree some time in August 1987, when he noticed that the defendants were having frequent meetings. The trial court found that this assertion of the plaintiff was belied by the material on record. It has recorded in paragraph 6 of its judgment, several reasons why it was not possible to believe that the plaintiff Milind, who was the son of Moreshwar, defendant No.1 in the earlier suit, was unaware of the passing of the consent decree so that he could not file a suit within the period of limitation prescribed by law, namely three years. In this connection, the learned Judge found that on September 30, 1985 the plaintiff was present before Markand Gandhi, Attorney, when the offers received were considered. He was also present at the meeting before the Court Receiver on December 19, 1986. He also attended the office of the Prothtonotary and Senior Master on November 24, 1986, on the request of his father. The plaintiff had himself affirmed affidavits in the suit proceedings averring that he was fully conversant with the facts of the case. He was also present in Court on 15th July, 1987 and 24th July, 1987. All these facts proved that the case pleaded by the plaintiff that he came to know about the passing of the decree sometime in August, 1987 was not true.15. The Appellate Bench also agreed with the finding recorded by the Trial court. In particular the appellate court noticed the letter of March 26, 1984 addressed by the plaintiff Milind to the Court Receiver informing the Court Receiver that his father defendant No.1, in the earlier suit, had gone out of town and that one Arvind, occupant of a room in the structure was indulging in destruction of property and that the Court Receiver should take steps to carry out repair works and prevent further damage. It also noticed the minutes recorded by the Court Receiver on December 13, 1986 of the meeting held in his office in which the plaintiff was present on behalf of his father. It also noticed the affidavit filed by the plaintiff, on behalf of his father, affirmed on March 31, 1987 reiterating and confirming the statements made by his father in the affidavit of the same date. Thus the Court held that right from the year 1984 onwards Milind was fully aware of the decree and, therefore, it was futile to claim that he became aware of the consent decree only in the first week of August, 1987.16. Similarly, the trial court considered the objection raised by the plaintiff on the ground ofof Order 23 Rule3B of the Code of CivilProcedure. Two submissions were advanced on behalf of the plaintiff, namely, that the Court had not granted leave to enter into a compromise in the suit which was of a representative character and secondly, that no notice was issued to the plaintiff in the said proceeding. The trial court negatived the contention holding that the suit had been filed for partition of the joint family properties and, therefore, it was not necessary to join the minor sons, who were represented by their respective Kartas. The father of the plaintiff represented him in the suit. The consent decree read as a whole made it clear that the Court which passed the decree was conscious of the fact that the suit was for partition of the joint family properties. The Court also recorded provided that the said sale was for the benefit of minors interested in the property and that the respective fathers of such minors would stand appointed as guardians with power to execute conveyance and to pass valid receipts, and that the share coming to the minors would be deposited with the Accounts Officer of the Court. There was, therefore, substantial complianceof Order 23 Rule3B of the Code of CivilProcedure since the Court had taken care of the interest of these minors who were not party to the suit. It was, therefore, apparent that the Court had granted leave under the said Rule. Rejecting the contention that the consent order of August 13, 1985 was a fresh decree passed after the plaintiff had attained majority without hearing him, the trial court held that the decree passed on February 28, 1980 was, in fact, confirmed by the subsequent decree and only the mode of sale was varied by the consent order of August 13, 1985. In any event, Order 23 Rulewas not applicable to execution proceedings and the variation of Order dated August 13, 1985 was, merely, in execution of consent decree dated February 28, 1980. This aspect of the matter, according to the trial court, stood concluded by the order of Suresh, J, in the review petition filed by the plaintiff which was not appealed against. The trial Judge therefore, found no merit in the Notice of Motion taken out by the plaintiff.17. The Appellate Court also considered the material on record and came to the same conclusion. It rejected the submission that the consent decree was void as the leave of the Court was not expressly recorded in the proceedings and that such leave could not have been granted without notice to the plaintiff and his brothers who were interested in the properties in suit. It held that it was not correct to say that the leave of the Court was not expressly recorded in the proceedings. The fact that the consent terms were tendered in Court and the Court proceeded to pass decree in accordance with the consent terms was sufficient to hold that the leave of the Court was expressly recorded. It was not necessary to use particular words to record the leave of the Court, and the fact that the Court proceeded to pass the consent decree was sufficient indication that the Court had granted leave. It further held that issuance of notice as contemplated in3B of Order 23 ofCode of Civil Procedure was not mandatory, and in case the Court found that all parties interested in the suit had joined in the consent terms and were fully conscious of consent terms, then issuance of notice was an empty formality. On the facts and circumstances of the case, it was held that the Court was fully satisfied that the two sons of Moreshwar, namely, the plaintiff and his brother were fully conscious of the consent terms. It also noted that it was not the case of the plaintiff that by entering into consent decree his father had affected his interest to his detriment. The complaint was only about compliance with the procedure envisaged by Rule3B of Order 23 ofthe Code of Civil Procedure.18. We have been taken through the findings recorded by the trial court as well as by the appellate court. They have recorded concurrent findings while rejecting the Notice of Motion praying for interim relief. It is true that the findings recorded are tentative and only for the purpose of disposal of the Notice of Motion. The plaintiffs suit is pending and the merit of his claim will have to be judged in the Suit on the basis of the evidence on record. However, we do not find that any error has been committed by the High Court in refusing interim relief. The trial court as well as the appellate bench have exhaustively dealt with the submissions urged before them and the material on record and applied their mind to the issues raised before them. They have concurrently found that there was no justification for issuance of an interim order as prayed for in the Notice of Motion. They have not taken into account any extraneous matter, nor do we find any perversity in the appreciation of the material on record. The findings of the Courts below are concurrent and based on the material on record. We have found nothing which can justify our taking a different view.