High Court · 1992
Legal Reasoning
1901-sa-358-1992.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.901 SECOND APPEAL NO. 358 OF 1992Maroti Devrao Biradar, (died)Through his L.Rs.Vyankatrao s/o. Maroti BiradarAge:- 70 years, Occu. Agril., R/o Shelgi, Tq. Nilanga,District: Latur…AppellantVersus1.Narsing Shamrao Biradar,died through Legal heirsA)Vandanabai Narsing Biradar (Wife)Age: 62 years, Occu:- Household,B) Prakash Narsing Biradar (Son)Age:-42 years, Occu: -Agri.C) Deelip Narsing Biradar (Son)Age: 24 years, Occu:- Agri.All R/o. Shelagi, Po. AuradShahjani, Tq. Nilanga, Dist. LaturD)Shobhabai Prabhu Umare (Daughter)Age:- 34 years, Occ:- Household,R/o. Malegaon Kalyani,Taluka Nilanga, Dist. Latur.E) Mangalbai Vilas Umare (Daughter)Age:- 33 years, Occu:- Household,R/o. Badur, Tq. Nilanga, Dist. Latur. All occupation Agriculture,R/o. Shelgi, Ta. Nilanga, Dist. Latur2.Nivarati Parbata (Genative father’sname Ganpati Biradar), Age:- 31 yrs.3.Vishwambhar Devrao Biradar,Age:-45 years,4.Govind Ganpati Biradar,Age:-46 years,
Legal Reasoning
2901-sa-358-1992.odt5.Babu Ganpati Biradardied through legal heirs5-A) Damyanti w/o. Babu Biradar,Age:- 49 years, Occu:- Household,5-B) Harishchandra S/o. Babu Biradar,Age:-30 years, Occu:- Agril,5-C) Sanjay S/o. Babu Biradar,Age:- 30 years, Occu:- Agril,All R/o. Shelgi, Tq. Nilanga, Dist. Latur6.Bhimrao Ravji Biradar, (Died)7.Shrirang Keshav BiradarDied through legal heirs7-A) Shevantabai W/o. Shrirang Biradar,Age:- 60 years, Occu: - Household,R/o. Shelgi, Tq. Nilanga, Dist. Latur.7-B) Ram S/o. Shrirang Biradar,Age:- 40 years, Occu:- Agri,R/o. As above.7-C) Sukumar W/o. Baburao Barole, Age:- 35 years, Occu:- Household, R/o. Pandhri, P.O. Hulsur, Tq. Balki, Dist. Bidar (Karnataka)...Respondents ...Advocate for Appellant : Ms. Rekha M. Mohale Choudhari Advocate for Respondent Nos. 1-a to 1-e : Mr. V. C. Solshe...WITH CIVIL APPLICATION NO. 414 OF 2003 IN SA/358/1992…CORAM :ROHIT W. JOSHI, J.DATE :04th MARCH, 2025ORAL JUDGMENT.:1.The present Second Appeal was admitted on 20th August 1992, 3901-sa-358-1992.odthowever, substantial question of law was not framed while admittingthe appeal due to inadvertence. Thereafter on 29.02.2024 the followingsubstantial question of law has been framed:-i. Whether the present appellant had given special authority tohis advocate in Regular Civil Suit No.57 of 1971 to compromisethe matter ?2.The present Second Appeal is filed by the original plaintiff to takeexception to judgment and decree dated 15.01.1986 passed by thelearned Civil Judge, Junior Division, Nilanga in Regular Civil Suit No.90of 1981 as also the judgement and decree dated 03.01.1992 passed bythe learned Third Additional District Judge, Latur in Regular CivilAppeal No.23 of 1986, whereby the judgment and decree passed by thelearned trial Court dismissing the suit of the plaintiff came to beupheld. The plaintiff was defendant No.2 in RCS No.57 of 1971. Theother defendants in the suit are family members. Defendant No.3 is realbrother of the plaintiff. Defendant No.1 is the plaintiff in earlier CivilSuit No.57 of 1971. The said Civil Suit No.57 of 1971 came to bedisposed of vide a compromise decree in which compromise wasrecorded on 09.01.1973. The plaintiff who is defendant No.2 in the saidSuit was not personally present. It will be pertinent to mention that outof the seven defendants four defendants were personally present and 4901-sa-358-1992.odtthree defendants including the present plaintiff were represented by theAdvocate while the compromise was recorded. The plaintiff who isdefendant No.2 in the said suit was concerned with an agricultural landbearing Survey No.53/A which was one of the suit properties involvedin Regular Civil Suit No.57 of 1971. This land was being jointlycultivated by the plaintiff/defendant No.2 and his real brother i.e.defendant No.3. It needs to be mentioned that admittedly defendantNo.3 was personally present and has confirmed the fact of compromisebefore the learned Court while the compromise was recorded. In thisbackdrop, the present plaintiff filed Regular Civil Suit No.90 of 1981 inwhich a declaration is sought that the decree passed in RCS No.57 of1971 on 09.01.1973 is null and void, ineffective and inoperative andnot binding on the plaintiff being an outcome of fraud practiced uponby the plaintiff. A further prayer is made for injunction restraining theexecution of the said decree. The said suit came to be dismissed videjudgment and decree dated 15.01.1986. Aggrieved by dismissal of thesuit the plaintiff preferred appeal being Regular Civil Appeal No.23 of1986 which met the same fate. In this backdrop, the present SecondAppeal came to be filed.3.I have heard the learned Advocate for the appellant/originalplaintiff. She contends that the Code of Civil Procedure specifically 5901-sa-358-1992.odtprescribes a procedure for passing a compromise decree. She placesreliance on the Order 23 Rule 3 in order to contend that the learnedCourt which has recorded the compromise and passed compromisedecree has failed to fulfill the obligations imposed by the said provisionin as much as the learned Court did not personally confirm from thepresent plaintiff and two other defendants as to whether the subjectmatter of the suit was compromised between the plaintiff and them.She places reliance upon judgement of the Hon’ble Supreme Court inthe matter of Jamilabai Abdul Kada Vs. Shankarlal Gulabchand andOrs. reported in AIR 1975 Supreme Court 2202 to buttress hercontention. She contends that an Advocate can represent the party forrecording compromise only in two contingencies, namely that he acts ingood faith for the benefit of his client and if time permits then heshould necessarily consult his client and take his consent beforeappearing to record compromise on his behalf.4.Per contra, learned Advocate Mr. Solshe appearing for legalrepresentatives of the contesting respondent who is plaintiff in theearlier Civil Suit contends that the declaration is sought alleging fraud.He refers to the plaint to point out that no allegations have been madeagainst any particular person as regards fraud or misrepresentation.Referring to the evidence of the learned Advocate who had representedthe plaintiff i.e. defendant No.2 in the earlier Civil Suit as also the other 6901-sa-358-1992.odtdefendants, he states that the said Advocate was examined as a witnesson behalf of the plaintiff and he has not supported the case of theplaintiff. He further refers to findings recorded by the learned Courtsand justifies the dismissal of suit filed by the plaintiff.5.I have heard the learned Advocates as above and also perusedrecord of the case with their able assistance. I have perused thecompromise decree that is passed in the earlier Civil Suit. It appearsfrom the compromise decree that out of seven defendants fourdefendants were personally present in the Court, particularly, defendantNo.3 i.e. real brother of the present plaintiff was also personallypresent. He was cultivating land bearing Survey No.53/A jointly withthe present plaintiff. The contention of the plaintiff is that thecompromise decree is adverse to his interest qua land bearing surveyNo.53/A. If that be so it was also adverse to the interest of defendantNo.2 ie. his real brother who was jointly cultivating the land with him.Yet he has confirmed the compromise and has not raised any disputewith respect to the same thereafter.6.I also find substance in the contention of the learned Advocatefor the respondent that in the plaint no allegations of fraud have beenlevelled against any of the defendants including the brother of plaintiff.It will be pertinent to mention that four defendants were personally 7901-sa-358-1992.odtpresent before the Court. They have personally signed the settlementterms on the basis of which compromise decree came to be passed.There is no allegation worth mentioning against either of them.Likewise, there is no allegation even against the Advocate that he actedin bad faith or in collusion with the plaintiff or practice fraud. In thisregard the allegations in paragraph 1 which are referred by the learnedAdvocate for the appellant it is found that the word fraud is mentionedwithout providing any particulars as regards the mode and manner inwhich the same is committed or practiced.7.Having perused the pleadings in the plaint, I am of theconsidered opinion that the plaintiff has miserably failed to providenecessary particulars with respect to alleged fraud. A bald assertion ismade that specific instructions to compromise the matter were notgiven to the Advocate. Likewise, it is vaguely stated that the otherdefendants acting in collusion mislead the Advocate. These pleadingstaken on their face value are grossly inadequate to satisfy therequirements of Order 6 Rule 4. Such, being the case in my consideredopinion the pleadings were insufficient even to call for framing of issuesas regards fraud or collusion. Legal position in this regard is well settledby a catena of decisions of Hon’ble Supreme Court and this Courtincluding in the matters of Bishundeo Narain and Anr. Vs. SeogeniRai and Anr. Reported in AIR 1951 SC 280; Shanti Budhiya Vesta 8901-sa-358-1992.odtPatel and Anr. Vs. Nirmala Jayprakash Tiwari & Ors. reported in (2010)5 SCC 104 and Kisan Ramji Khandare Vs. Kausalyabai Gangaram Korde& Ors. reported in 2007 (4) Mh.L.J. 43.8.That apart the compromise is recorded in the year 1971. The suitis filed in the year 1981 after a period of around 10 years. The partiesto compromise are the family members of the plaintiff. Defendant No.3in the said suit is his real brother. The plaintiff has not offered anyexplanation for the delay of 10 years by giving any proper explanationfor the same. He has merely stated the he was not aware about thecompromise decree, which again in my considered opinion is notsufficient to explain the delay. Explanation in this regard ought to havebeen given with proper and necessary details and particulars. I am ofthe considered opinion that the plaint averments are deficient withrespect to the details that ought to have been provided as per mandateof Order 7 Rule 1(e).9.Apart from this, the plaintiff has examined the Advocate who hadappeared on his behalf to record the compromise. The Advocate has notsupported the cause of the plaintiffs. The plaintiff did not seek leave ofthe Court to conduct cross-examination of the Advocate. Thestatements of witness of the plaintiff do not support his allegations inthe plaint.10.As regards the judgments of the Hon’ble Supreme Court relied 9901-sa-358-1992.odtupon the learned Advocate for the appellant there is nothing to inferthat the learned Advocate did not act in good faith while appearing onbehalf of the present plaintiff in recording the compromise. The Hon’bleSupreme Court has stated that while recording compromise on behalfof clients it will be prudent and proper for Advocate to consult theirclients and take their concent if there is an opportunity. The learnedAdvocate has stated in his deposition that he had taken consent andhad also consulted defendant No.2, i.e., present plaintiff and otherdefendants before confirming the fact of compromise. In that view ofthe matter, in my considered opinion the judgment of the Hon’bleSupreme Court does not further the cause of the appellant.11.Both the learned Courts have considered the controversy in aptdetails and have given cogent reasons for not accepting the case of theplaintiff. The reasons recorded by the learned Courts exhibit properappreciation of evidence on record. The reasons cannot be said to beperverse by any stretch of imagination. In such circumstances, I aminclined to confirm the decree of dismissal of suit passed by the learnedTrial Court which is in term is confirmed by the learned AppellateCourt. The Second appeal is therefore dismissed. [ROHIT W. JOSHI J.] Narwade/