Mahalaxmi Cooperativ... v. Ashabhai Atmaram Pat...

The Judgment of the Court was delivered by

K.S.P Radhakrishnan, J***.— Leave granted. These appeals arise out of a common judgment rendered by a learned Single Judge of the High Court of Gujarat disposing of six special civil applications of which we are concerned with the appeals preferred against Special Civil Applications Nos. 7088 of 2010, 10884 of 2009, 11925 of 2009 and 7087 of 2010. The learned Single Judge, in exercise of his powers under Articles 226 and 227 of the Constitution of India quashed the orders dated 14-8-2008 and 8-9-2009 passed in Special Civil Suit No. 292 of 1993 and Special Civil Suit No. 681 of 1992 respectively by the learned Civil Judge (SD) of Ahmedabad (Rural) and remanded the matter to the court, after reviving the interim order dated 28-5-1993 passed in Civil Suit No. 292 of 1993.

2***. Civil Suit No. 292 of 1993 was preferred by Respondent 4, Chandrakant Atmaram Patel and Respondents 1 to 5 herein (purchasers) against Respondent 6, Bai Saraswati and the appellant herein, Mahalaxmi Cooperative Housing Society Ltd. (for short “Mahalaxmi Society”) for a declaration that sale deeds dated 5-6-1992 and 8-6-1992 were illegal and also for an order of permanent injunction restraining Mahalaxmi Society from dealing with the lands and also for other consequential reliefs. Chandrakant Atmaram Patel, Plaintiff 1 and Plaintiff 2 are the heirs of the deceased Baldevprasad (Respondents 5/1 and 5/2 herein), Plaintiff 3/1 and Plaintiff 3/2 are heirs of Manilal Bechardas (Respondents 3/1 and 3/2 herein), Plaintiff 4 is Ashabai Patel (since deceased and now through legal representatives, Respondents 1/1.A to 1/1.D) and Plaintiff 5 are heirs of Amrutlal Patel (Respondents 2/1, 2/2, 2/3 and 7 herein), along with the plaint filed an application for temporary injunction, which was allowed vide order dated 28-5-1993. One Jankalyan Cooperative Housing Society sought intervention in Civil Suit No. 292 of 1993 on the basis of a registered agreement to sell dated 15-6-1992 and joined as Defendant 3. Civil Suit No. 681 of 1992 was also a suit filed by Respondents 1 to 5 against the Deputy Collector, the appellant herein and the sixth respondent for an order of permanent injunction on the ground that no permission under Section 63 of the Tenancy Act was obtained before executing various sale deeds.

3. We have to trace the facts leading to the filing of the above suits and the disputes that cropped up thereafter between the original plaintiffs, Bai Saraswati and Mahalaxmi Society, leading to the filing of the pursis dated 7-7-2008 and 18-9-2008 and the steps they have taken for resolving those disputes in Civil Suit No. 292 of 1993 and Civil Suit No. 681 of 1992.

4. Bai Saraswati, Respondent 6 herein had executed two sale deeds dated 27-10-1964 in respect of separate non-contiguous parcels of lands in favour of five persons i.e Respondents 1 to 5. Respondents 1 to 5 (purchasers) formed a partnership firm in the name of M/s Arbuda Corporation on 4-3-1965 to deal with the abovementioned properties and each partner had equal share. M/s Arbuda Corporation on 15-9-1975 executed an agreement to sell in favour of Mahalaxmi Society in respect of the abovementioned lands.

5****. The Urban Land (Ceiling and Regulation) Act, 1976 (for short “the ULC Act”) came into force in 1976. M/s Arbuda Corporation and the appellant Mahalaxmi Society jointly made an application under Section 20 of the ULC Act seeking permission to execute the sale deed before the Deputy Collector, Ahmedabad. Similar applications were also filed by Respondent Bai Saraswati and Respondent 4 Chandrakant Atmaram Patel. On 7-1-1989 Respondents 5/1, 5/2 and 5/3, Respondents 3/1 and 3/2, Respondent 1 (since deceased) and Respondent 2 (since deceased) executed a power of attorney in favour of Respondent 4, Chandrakant Atmaram Patel in respect of the abovementioned properties. The power of attorney provided that the same would be binding on Respondents 1, 2, 3 and 5 and their descendants, guardians and heirs. On 1-5-1991 Bai Saraswati executed an agreement to sell with possession of the abovementioned properties in favour of Mahalaxmi Society. Permission sought for under Section 20 of the ULC Act was also granted by the authority to Bai Saraswati for dealing with the properties.

6****. Bai Saraswati then executed two sale deeds dated 5-6-1992 and 8-6-1992 in favour of Mahalaxmi Society in respect of the abovementioned properties, which led to various disputes between Mahalaxmi Society, Bai Saraswati and the five purchasers mentioned earlier. Respondents 1-5 then filed Special Civil Application No. 4413 of 1992 before the High Court against Mahalaxmi Society and Bai Saraswati and the State of Gujarat challenging the order dated 3-6-1992 passed under Section 20 of the ULC Act and that order was stayed, so also the further proceedings thereto. Respondents 1-5, as plaintiffs, filed Special Civil Suit No. 681 of 1992 against the Deputy Collector, Ahmedabad, Mahalaxmi Society and Bai Saraswati on 31-7-1992 praying for an injunction restraining the grant of permission under Section 63 of the Tenancy Act, which was, however, granted on the same day. Consequently, Special Civil Suit No. 681 of 1992 was later amended challenging the grant of permission.

7. As already stated, Respondents 1 to 5 had also filed Civil Suit No. 292 of 1993 on 4-5-1993 against Bai Saraswati and Mahalaxmi Society for a declaration that the sale deeds dated 5-6-1992 and 8-6-1992 were illegal and also for other consequent reliefs. Bai Saraswati later executed a sale deed dated 18-10-2000 in respect of the remaining Survey No. 216 in favour of Mahalaxmi Society.

8. Plaintiffs Bai Saraswati and Mahalaxmi Society, in view of the various transactions entered into between various parties and the pending litigations were exploring the possibility of settling all their disputes. As a follow-up, Mahalaxmi Society paid an amount of Rs 29,72,365 to the plaintiffs by various cheques and a notarised acknowledgment-cum-settlement receipt was also issued on 1-5-2004, which is reflected in the registered deed of confirmation dated 1-5-2004 executed by Chandrakant Atmaram Patel, the first plaintiff for and on behalf of other plaintiffs on the strength of the power of attorney dated 7-1-1989. The first plaintiff also executed a declaration-cum-indemnity of title on 9-11-2004 wherein it was stated that Mahalaxmi Society was the full, legal, proper and absolute owner and possessor of the properties mentioned therein. The plaintiffs had also agreed to cooperate in obtaining appropriate orders in Special Civil Suit No. 681 of 1992 and Special Civil Suit No. 292 of 1993, in view of the compromise and settlement.

9#. Plaintiff 1 Chandrakant Atmaram Patel had also executed various documents individually. He executed a registered deed of confirmation dated 10-11-2004, referring to the payment of Rs 29,72,365 by Mahalaxmi Society. Reference was also made to the receipt dated 1-5-2004 and the registered deed of confirmation dated 1-5-2004 acknowledging the receipt of Rs 29,72,365 from Mahalaxmi Society by Plaintiff 1 as power-of-attorney holder for himself and on behalf of the other plaintiffs as well. Registered articles of agreement dated 10-11-2004 also refer to a further payment of Rs 66,05,527 by Mahalaxmi Society which was received by Plaintiff 1 Chandrakant Atmaram Patel. Declaration-cum-indemnity of the title was also made on 10-11-2004 wherein it was stated that Mahalaxmi Society was the full, legal, proper and absolute owner and possessor of the abovementioned lands.

10. Plaintiff 2, heirs of Baldevprasad Jamnadas, had individually executed a registered deed of confirmation on 10-11-2004, referring to the payment of Rs 29,72,365 and proportionate payment of Rs 5,94,473. The documents also refer to the deed of confirmation dated 1-5-2004. Registered article of agreement dated 11-11-2004 executed by Plaintiff 2 also refers to a further payment of Rs 66,05,527 made to the heirs of Baldev Prasad Jamnadas. Declaration-cum-indemnity of title dated 10-11-2004 executed by them acknowledged that Mahalaxmi Society was the legal and absolute owner and was in possession of the properties.

11. Plaintiffs 5/1 to 5/4, heirs of Amrutbhai Patel, had also individually executed various documents. Registered deed of confirmation dated 10-11-2004 executed by them also referred to the payment of Rs 29,72,365 and the proportionate payment of Rs 5,94,473. Registered articles of agreement executed by them on the same day also referred to further payment of Rs 66,05,527. Declaration-cum-indemnity of title executed on 10-11-2004 also referred to the interest of appellant Mahalaxmi Society.

12. Plaintiffs 3/1, 3/2 and Plaintiff 4, however, issued a public notice on 5-12-2004 in the local newspapers (Gujarat Samachar and Dainik Bhaskar) cancelling the power of attorney dated 7-1-1989 executed in favour of Plaintiff 1 Chandrakant Patel. Mahalaxmi Society, through their solicitor, on 11-12-2004, issued a public notice in the local newspaper (Sandesh) inviting claims/objections to the title of Mahalaxmi Society. On 16-12-2004 Plaintiffs 3/1, 3/2 and Plaintiff 4 gave their replies.

13. Plaintiff 4 (who later expired on 2-6-2006) had also executed a registered deed of confirmation on 5-1-2005, which acknowledged the payment of Rs 29,72,365. In the registered articles of agreement dated 5-1-2005, Plaintiff 4 had acknowledged the receipt of payment of an additional amount of Rs 30,05,527. He had also referred to the interest of Mahalaxmi Society in the declaration-cum-indemnity of the title executed on the same day.

14##. Plaintiffs 1, 2/1, 2/2, 4 and 5/1 to 5/4 (all plaintiffs, except Plaintiff 3) through their advocates published a notice in the local newspapers (Sandesh, Gujarat Samachar and Divya Bhaskar) confirming the abovesaid facts as also the execution of documents. They had indicated that it was after the execution of all the abovesaid documents and receipt of payments, Plaintiff 4 had expired on 2-6-2006. Respondents 1/1.A to 1/1.D, the legal heirs of Plaintiff 4, it is seen, did not take any steps to implead themselves as heirs in the two suits, namely, Special Civil Suit No. 681 of 1992 and Civil Suit No. 292 of 1993.

15##. Plaintiff 1 Chandrakant Atmaram Patel, in the wake of the abovementioned facts and circumstances, prepared a pursis on 7-7-2008, the operative portion of which reads as under:

“By filing following pursis, I, the plaintiff declare before the Hon'ble Court that outside court, amicable settlement has been arrived at between me and the defendants. I, the plaintiff, admit registered sale deeds, bearing Sl. Nos. 13875, 13881, 13891, 13873, 13886 and 13896 dated 5-6-1992 and all Registered Sale Deed No. 14034 dated 8-6-1992 and Registered Sale Deeds Sl. Nos. 4027 and 4028, dated 18-10-2000 executed by the original landlord, Bai Saraswati, d/o Ashabhai Revandas in favour of Mahalaxmi Coop. Housing Society Ltd. in respect of suit property mentioned by the plaintiff in the suit application of this case and in this regard, registered deeds of agreement jointly and separately. The said registered deeds of agreement have been produced, vide separate list, by us. The facts mentioned in the said registered deeds of agreement are proper, true and legal. As stated in the said deeds of agreement, the ownership right and possession of the said suit property have been received by Mahalaxmi Coop. Housing Society Ltd. In the said suit property, I, the plaintiff, have no right, authority or possession. As per said facts, I, the plaintiff, unconditionally waive all contentions raised by us in this suit and by undergoing cost of the said suit, I compound the same.

Ahmedabad Dated: 7-7-2008 sd/- (Chandrakant Atmaram Patel)”

The same was filed before the court. Defendant 3 and Plaintiffs 3/1 and 3/2 filed objections to the pursis on 31-7-2008. Plaintiff 1 Chandrakant Atmaram Patel, on 13-9-2008, filed an affidavit before the Court stating that the pursis was given in his individual capacity and in his capacity of power-of-attorney holder of Plaintiffs 2, 4 and 5 and produced the power of attorney dated 7-1-1989 before the trial court. The trial court vide its order dated 14-8-2008 allowed the pursis (Ext. 110) and accorded permission to compound the suit. Pursuant to the abovementioned settlement and compromise, a similar pursis dated 18-9-2008 (Ext. 172) was also filed in Special Civil Suit No. 681 of 1992, which was also disposed of on 8-9-2009 accepting the same.

16*#. Plaintiffs 3/1 and 3/2, as already stated, challenged the judgment and order dated 14-8-2008 by filing Special Civil Application No. 10884 of 2009, under Articles 226 and 227 of the Constitution of India. Plaintiffs 3/1 and 3/2 also challenged the order dated 8-9-2009 by filing Special Civil Application No. 11929 of 2009. The heirs of Plaintiff 4 also challenged the abovementioned order by filing Special Civil Application No. 7097 of 2010 and the heirs of the deceased Plaintiff 4 also filed Special Civil Application No. 7087 of 2010. Heirs of Plaintiff 4 and Plaintiffs 5/1 and 5/2 also challenged the judgment and order dated 8-9-2009 by filing Special Civil Application No. 7088 of 2010. The High Court disposed of those applications by a common judgment on 19-12-2011, the legality of which is under challenge in these appeals.

17. Mr Mukul Rohatgi, learned Senior Counsel appearing on behalf of the appellant, at the outset, raised the question of maintainability of the writ petitions filed before the High Court under Articles 226 and 227 of the Constitution by the respondents, on the ground that the orders assailed before the High Court dated 14-8-2008 and 8-9-2009 were the orders passed by the trial court in exercise of its powers conferred under the proviso to Rule 3 of Order 33 of the Code of Civil Procedure (for short “CPC”). The learned Senior Counsel submitted that, at best, the remedy available to the respondents was to file an appeal under Section 96 read with Order 43 Rule 1-A(2) and Order 41 CPC before the appellate court. The learned Senior Counsel submitted that the pursis was preferred under Order 23 Rule 3 CPC and not under Order 21 Rule 1 CPC. The learned Senior Counsel submitted that the order dated 14-8-2008 falls under the second part of Order 23 Rule 3 CPC and hence it would be sufficient that the plaintiffs or the plaintiffs' counsel appears before the court and informs the court that the subject-matter suit had been settled or satisfied.

18*#. The learned Senior Counsel also submitted that the heirs of the deceased Plaintiff 4 and Plaintiffs 5/1, 5/2 and 5/4 could not have preferred the writ petitions under Articles 226 and 227 of the Constitution of India, since the same could have resulted in setting aside of the abatement which was contrary to law in view of Order 22 CPC. Plaintiff 4 had died on 2-6-2006 and Civil Suit No. 292 of 1993 had, as such, abated qua the deceased Plaintiff 4. Since the heirs, who are Respondents 1/1.A to 1/1.D, did not take any steps to implead themselves as heirs either in Civil Suit No. 292 of 1993 or in Special Civil Suit No. 681 of 1992, on expiry of the period of limitation under Articles 120 and 121 of the Limitation Act, those suits stood abated qua Plaintiff 4. The heirs of the deceased Plaintiff 4 had not taken any steps for setting aside the abatement or to get them substituted on the death of deceased Plaintiff 4 in the various suits. Further, it was also pointed out that Plaintiffs 5/1 to 5/4 had never objected to the pursis dated 7-7-2008 and hence acquiesced to the order dated 14-8-2008 and are estopped from challenging that order. The learned Senior Counsel submitted that all disputes with Plaintiffs 3/1 and 3/2 were also settled during the pendency of these appeals and their objections before the trial court under Special Civil Applications Nos. 10884 and 11925 of 2005 did not survive.

19. Further, the learned Senior Counsel also pointed out that the power of attorney dated 7-1-1989 executed by Respondents 5/1, 5/2 and 5/3, Respondents 3/1 and 3/2, Respondent 1 (since deceased) and Respondent 2 (since deceased) in favour of Respondent 4 Chandrakant Atmaram Patel, was binding on Respondents 1, 2, 3, 5 and their descendants, guardians and heirs. The learned Senior Counsel also submitted that pending the special civil application before the High Court, building plans put up by Mahalaxmi Society for construction upon the lands in question were sanctioned by the competent authority and Mahalaxmi Society had commenced the construction. The learned Senior Counsel submitted that large amounts were paid by Mahalaxmi Society to the owners of the properties and to the respondents and their representatives and they had acknowledged the receipt of those amounts. The judgment of the High Court has now unsettled the things which stood settled. Consequently, the learned Senior Counsel prayed that the appeals be allowed and the judgment of the High Court be set aside.

20*. Shri J.M Patel, learned counsel appearing on behalf of the contesting respondents, submitted that the High Court has rightly set aside the order dated 14-8-2008 and directed the trial court to take into consideration the objections raised by the respondent herein and to rehear Exts. 110 and 172. The learned counsel submitted that the suit was withdrawn without the consent of Plaintiffs 5/1 to 5/4 by Chandrakant Atmaram Patel. Further, it was pointed out that no documents were produced before the trial court pointing out that the abovementioned plaintiffs had executed any document in favour of Mahalaxmi Society. The learned counsel also pointed out that Bai Saraswati had fraudulently, unauthorisedly and illegally made an application before the authority for seeking permission under Section 63 of the Tenancy Act to transfer the land in question in favour of Mahalaxmi Society. Following that, two registered sale deeds dated 5-6-1992 and 8-6-1992 were executed in favour of Mahalaxmi Society, which is in clear violation of Section 63 of the Tenancy Act read with Section 23 of the Contract Act. The learned counsel also pointed out that the plaint in Civil Suit No. 292 of 1993 was instituted in his individual capacity and not as a power-of-attorney holder for rest of the plaintiffs.

21. The learned counsel also pointed out that Chandrakant Atmaram Patel on 15-5-2004 executed one registered document in favour of Mahalaxmi Society, signed and executed for and on behalf of Amrutbhai Ashabai Patel (heirs of the legal representatives are Plaintiffs 5/1 to 5/4) and also signed on behalf of Bai Saraswati, who expired on 22-5-1992, before the institution of suit, on relying upon the power of attorney dated 7-1-1989. The learned Senior Counsel pointed out that the document executed in the name of and on behalf of dead persons and also for the persons who had not authorised them to sign such a document, according to the learned Senior Counsel, could not have been produced before the court.

22**#. The learned counsel appearing on behalf of the contesting respondents also submitted that the impugned order dated 14-8-2008 is not a decree within the meaning of Section 2(2) CPC and hence, no appeal could have been filed under Section 96 read with Order 43 Rule 1(1) and Order 41 CPC before the trial court. The learned Senior Counsel also submitted that the contents of the power of attorney dated 7-1-1989 do not empower Chandrakant Atmaram Patel to withdraw the suits, compound the suits for and on behalf of Plaintiffs 4 and 5 and the court should not have allowed the application withdrawing the suit. The learned Senior Counsel submitted that the High Court has rightly set aside the order dated 14-8-2008 and remanded the matter to the trial court for fresh consideration and no prejudice would be caused to the appellants, if the validity of Exts. 110 and 172 is re-examined. The learned counsel also submitted that this Court, sitting in Article 136 of the Constitution of India, shall not disturb the above finding of the High Court.

23. Dr Rajeev Dhavan, learned Senior Counsel appearing for the intervener submitted that the purchasers, landowner and/or their legal heirs viz. Chandrakant Atmaram Patel had entered into an agreement dated 15-6-1992 with the intervener which was registered and hence it has right, title and interest over the property in question. Further, it was also pointed out that the intervener has already filed a suit RCS No. 783 of 2004 which is pending consideration before the civil court and hence it has interest in these proceedings. The learned Senior Counsel also submitted that the whole matter should go back to the trial court so as to safeguard the interest of the intervener.

24. We have already referred to the facts leading to the making of pursis dated 7-7-2008 and 18-9-2008 by Plaintiff 1 Chandrakant Atmaram Patel for himself and as power-of-attorney holder for others and the orders passed thereon on 14-8-2008 and 8-9-2009 allowing the pursis and compounding Suits Nos. 292 of 1993 and 681 of 1992.

25**#. Bai Saraswati, as already indicated, had executed two sale deeds dated 27-10-1964 in respect of separate/non-contiguous parcels of land in favour of Respondents 1 to 5. Schedules to those documents refer to the survey numbers and properties sold. Respondents 1 to 5 (purchasers) formed a partnership firm by name M/s Arbuda Corporation and they executed an agreement to sell dated 15-9-1975 in favour of Mahalaxmi Society in respect of the properties abovementioned. Later, M/s Arbuda Corporation and Mahalaxmi Society jointly made an application in the year 1976 under Section 20 of the ULC Act. Similar applications were also filed by Mahalaxmi Society, Bai Saraswati and Respondent 4 Chandrakant Atmaram Patel. Respondents 5/1, 5/2 and 5/3, Respondents 3/1 and 3/2, Respondent 1 (since deceased) and Respondent 2 (since deceased) had on 7-1-1989 executed a power of attorney before the Public Notarised Civil Court, Ahmedabad City, in favour of Respondent 4 Chandrakant Atmaram Patel in respect of properties mentioned earlier conferring authority on him to deal with their property for other plaintiffs and the same would be binding on Respondents 1, 2, 3, 5 and their descendants, guardians and heirs. Bai Saraswati, after getting permission under the ULC Act executed two sale deeds dated 5-6-1992 and 8-6-1992 in favour of Mahalaxmi Society in respect of properties mentioned earlier.

26. We notice that disputes then cropped up between Mahalaxmi Society, Bai Saraswati and Respondents 1 to 5 (purchasers), which ultimately led to the filing of Special Civil Suit No. 681 of 1992, the details of which have already been stated in the earlier part of this judgment, hence not reiterated. Respondents 1 to 5 as plaintiffs then filed Civil Suit No. 292 of 1993 against Bai Saraswati and Mahalaxmi Society on 4-5-1993 for a declaration that sale deeds dated 5-6-1992 and 8-6-1992 are illegal and for a permanent injunction restraining Mahalaxmi Society from dealing with the lands. The plaint was signed by Respondent 4 Chandrakant Atmaram Patel, Plaintiff 2 who are heirs of deceased Baldevprasad (present Respondents 5/1 and 5/2), Plaintiff 3 who are heirs of Manilal Patel (present Respondents 3/1 and 3/2), Plaintiff 4 Ashabhai Patel (since deceased) now through Respondents 1/1.A to 1/1.D and Plaintiff 5 who are heirs of Amrutlal Patel (present Respondents 2/1, 2/2, 2/3 and 7). The contesting respondents, therefore, were duly represented in Civil Suit No. 292 of 1993.

27***#. Bai Saraswati on 18-10-2000 executed a sale deed in respect of one remaining Survey No. 216 in favour of Mahalaxmi Society as well. While the abovementioned suits were pending, efforts were made for settling the entire disputes between the parties, consequently, Plaintiff 1 Chandrakant Atmaram Patel, for himself and as power-of-attorney holders for other plaintiffs executed various documents and entered into various transactions. Plaintiff 1 for and on behalf of other plaintiffs received an amount of Rs 29,72,326 made by Mahalaxmi Society by various cheques, evidenced by the notarised acknowledgment-cum-settlement receipt dated 1-5-2004. On the same day, a deed of confirmation was also registered, which also refers to the abovementioned payment made by Mahalaxmi Society to the plaintiffs. In the declaration-cum-indemnity of title dated 9-11-2004, it has been clearly stated that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the abovementioned properties. Further, it is also provided in the said declaration that the plaintiffs had agreed to cooperate in obtaining appropriate orders from the Court in pending cases, including Special Civil Suit No. 681 of 1992 and Civil Suit No. 292 of 1993, in view of the compromise and settlement. Though, at that stage, a cheque for proportionate amount was given to Plaintiff 3, he did not encash the same. Abovementioned are the documents executed by Plaintiff 1 for himself and on behalf of other plaintiffs on the strength of the power of attorney dated 7-1-1989.

28*†. Plaintiff 1 individually also, apart from the abovementioned documents, executed various other documents as well, which re-enforce and reconfirms the abovementioned transactions entered into by Chandrakant Atmaram Patel, as power-of-attorney holder for four other plaintiffs. Plaintiff 1 executed a registered deed of confirmation on 10-11-2004 which specifically refers to the payment of Rs 29,72,365 by Mahalaxmi Society. The deed also indicates that Plaintiff 1 personally, unconditionally and irrevocably without any reservation or restriction whatsoever accepted, confirmed, acknowledged and admitted the deed of confirmation dated 1-5-2004, which was executed by Plaintiff 1 for himself on behalf of other plaintiffs on the strength of the power of attorney dated 7-1-1989. Registered articles of agreement executed on the same day also refers to further payment of Rs 66,05,527 being made to Plaintiff 1. The declaration-cum-indemnity of title executed on the same day also recognises that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the abovementioned lands.

29. Plaintiff 2, heirs of Baldevprasad Jamunadas, individually also executed various documents, apart from the documents dated 1-5-2004 and 9-11-2004 executed by Plaintiff 1 on the strength of the power of attorney, representing Plaintiff 2 as well. Plaintiff 2 executed, on 11-11-2004, a registered deed of confirmation acknowledging the payment of Rs 29,72,365 by Mahalaxmi Society and proportionate payment of Rs 5,94,473. Plaintiff 2 in the said deed of confirmation, personally, unconditionally and irrevocably without any reservation or restriction whatsoever accepted, confirmed, acknowledged and admitted the deed of confirmation dated 1-5-2004 executed by Plaintiff 1 on his behalf and on behalf of other plaintiffs. Registered articles of agreement dated 11-11-2004 also recognises the further payment of Rs 66,05,527. Declaration-cum-indemnity of title made on the same day also indicates that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the abovementioned lands.

30*†. Plaintiffs 5/1, 5/2, 5/3 and 5/4, heirs of Amrutlal Patel had also individually executed various documents. Registered deed of confirmation dated 10-11-2004 refers to the payment of Rs 29,72,365 by Mahalaxmi Society and the proportionate payment of Rs 5,94,473. Plaintiffs 5/1, 5/2, 5/3 and 5/4, in the said deed of confirmation have personally, unconditionally and irrevocably without any reservation or restriction whatsoever accepted, confirmed, acknowledged and admitted the deed of confirmation dated 1-5-2004 executed by Plaintiff 1 on the strength of the power of attorney dated 7-1-1989. Registered articles of agreement dated 10-11-2004 also refers to further payment of Rs 66,05,527 being made to Plaintiffs 5/1, 5/2, 5/3 and 5/4. Declaration-cum-indemnity of title of the same date would also indicate that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the abovementioned lands.

31. Plaintiff 4 had also individually, in addition to the documents dated 1-5-2004 and 19-11-2004 executed by Plaintiff 1, executed a registered deed of confirmation dated 5-1-2005 acknowledging the payment of Rs 29,72,365. In that deed also, Plaintiff 4 has personally, unconditionally and irrevocably without any reservation or restriction whatsoever accepted, confirmed, acknowledged and admitted the deed of confirmation dated 1-5-2004 executed by Plaintiff 1. Plaintiff 4 had also, vide registered articles of agreement, acknowledged the receipt of the additional payment of Rs 30,05,527 on the same day. Declaration-cum-indemnity of title dated 5-1-2005 also acknowledges that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the abovementioned lands.

32**†. The above facts would clearly indicate that Plaintiff 1 on 5-1-2005 had executed documents as the power-of-attorney holder and also in his individual capacity, Plaintiffs 2/1, 2/2, Plaintiff 4 and Plaintiffs 5/1, 5/2 and 5/4 had also executed documents and settlement acknowledging the receipt of payments made by Mahalaxmi Society and also acknowledging that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the abovementioned properties. Further, on 9-11-2005, Plaintiffs 1, 2/1, 2/2, 4 and 5/1 to 5/4, through their advocate, published a notice in the local newspaper confirming the abovementioned facts and also the execution of the documents, thereby acknowledging that Mahalaxmi Society is the true, full, legal, proper and absolute owner and possessor of the abovementioned properties.

33. Plaintiffs 3/1, 3/2 and Plaintiff 4, however, had issued a public notice dated 5-12-2004 in the local newspapers, cancelling the power of attorney dated 7-1-1989 executed in favour of Plaintiff 1 Chandrakant Atmaram Patel. Plaintiff 4, after having executed the aforesaid documents in his individual capacity and after receipt of all the payments as per the aforesaid documents from Mahalaxmi Society expired on 2-6-2006. During his lifetime, he had not disputed any of the abovementioned documents or their contents. The legal heirs of Plaintiff 4 i.e Plaintiffs 1/1.A to 1/1.D had also not raised any dispute. On the death of Plaintiff 4, they also did not take any steps to get them impleaded as the heirs of Plaintiff 4 in Special Civil Suit No. 681 of 1992 or in Civil Suit No. 292 of 1993, consequently, on the expiry of the period of limitation, the suits stood abated, qua Plaintiff 4.

34**†. We have found that pursuant to the execution of various documents, referred to hereinbefore, by Plaintiff 1 Chandrakant Atmaram Patel, for himself and on behalf of the other plaintiffs, as well as Plaintiff 1 individually, Plaintiff 2, Plaintiffs 5/1, 5/2, 5/3 and 5/4, Plaintiff 4 individually, and after having received the amounts mentioned therein from the appellant Mahalaxmi Society, decided to record the compromise in both suits, since all the disputes between them were settled and they had acknowledged that Mahalaxmi Society is the full, legal, proper and absolute owner and possessor of the lands in question. Consequently, Plaintiff 1, on his behalf and on behalf of the other plaintiffs, except Plaintiffs 3/1 and 3/2, prepared a pursis dated 7-7-2008, referring to the sale deeds dated 8-6-1992 and 18-10-2000 executed in favour of Mahalaxmi Society in respect of all the properties in question stating that the plaintiffs have unconditionally given up all the claims raised in the suit and have settled the issues with Mahalaxmi Society. The same was then presented before the trial court. Plaintiffs 3/1 and 3/2 and Defendant 3, Jankalyan Society, however endorsed their objection to the pursis on 31-7-2008. Plaintiff 1 filed an affidavit on 13-8-2008 stating that the pursis was given in his individual capacity and as the power-of-attorney holder of Plaintiffs 2, 4 and 5. The trial court, after hearing Plaintiffs 3/1, 3/2 and Defendant 3 (intervener), came to the conclusion that Plaintiffs 3/1 and 3/2 had cancelled the power of attorney only on 3-12-2004, whereas the deeds of confirmation were executed prior thereto, and that Defendant 3's claim rested only on an agreement to sell, and could not enjoy any right under the Transfer of Property Act and, thereby, allowed the pursis and disposed of the suit (Special Civil Suit No. 292 of 1993) on 14-8-2008. Following that, Civil Suit No. 681 of 1992 was also disposed of on 8-9-2009.

35***†. We may indicate that the documents referred to earlier, executed by Plaintiff 1 for himself and as a power-of-attorney holder for others and the acknowledgment deed, declaration-cum-indemnity bonds, deeds of confirmation, etc. executed by Plaintiff 2, heirs of Baldev Prasad, Plaintiffs 5/1, 5/2, 5/3 and 5/4, Plaintiff 4, etc. would clearly show that they had received large amounts from Mahalaxmi Society and had acknowledged that Mahalaxmi Society was the full, legal, proper and absolute owner and in the possession of the property covered by the sale deeds dated 5-6-1992 and 8-6-1992. Plaintiffs 3/1 and 3/2 though later challenged the judgment and order dated 14-8-2008, after more than one year, while pending these appeals, they also settled the matter with Mahalaxmi Society and accepted all the arguments raised by Mahalaxmi Society in these appeals.

36***†. Defendant 3 Jankalyan Cooperative Group Housing Society (present intervener) had never independently challenged the order dated 14-8-2008 of the trial court, consequently the order is binding on Defendant 3.

37***†. We are now left with the objections raised by the heirs of the deceased Plaintiff 4 and Plaintiffs 5/1 to 5/4. The heirs of deceased Plaintiff 4 and Plaintiffs 5/1, 5/2 and 5/4 challenged the judgment and order dated 14-8-2008 only on 1-3-2010, more than one year and six months later, by filing Special Civil Application No. 7087 of 2010. The documents referred to earlier clearly indicate that they had received large amounts from Mahalaxmi Society and the heirs of the deceased Plaintiff 4 did not take any steps to get them recorded in the civil suit after the death of Plaintiff 4, so far as this case is concerned, the suit had abated. The heirs of Plaintiff 4 and Plaintiffs 5/1, 5/2 and 5/4 also challenged the judgment and order dated 8-9-2009 in Civil Suit No. 681 of 1992 only on 1-3-2011 by filing Special Civil Application No. 7088 of 2010. Plaintiff 4, we have already indicated, was duly represented by Plaintiff 1 Chandrakant Atmaram Patel while executing the various registered documents and issuing acknowledgment-cum-settlement receipts by which large amounts were received by Plaintiff 1, representing Plaintiff 4. Over and above, Plaintiff 4 himself had executed various registered deed of confirmation dated 5-1-2005 acknowledging the receipt of Rs 29,72,365 and also Rs 30,05,527. We are of the view that the legal heirs of Plaintiff 4 now cannot come forward and question the various documents executed by Plaintiff 4, especially when they had not taken any steps to get them impleaded in both the civil suits. Impugned orders passed on 14-8-2008 and 8-9-2009, therefore, would bind them. Plaintiffs 5/1 to 5/4 had also not objected to the execution of various deeds and documents and ratified all the actions taken by Plaintiff 1, as power-of-attorney holder, since they had not objected to the pursis dated 7-7-2008, and hence acquiesced to the order dated 14-8-2008.

38. We may now examine whether the impugned order would fall under Rule 3 of Order 23 or Rule 1 of Order 23 CPC; the said provisions are given below for easy reference:

“Order 23: Withdrawal and adjustment of suits

1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.

(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

(3) Where the court is satisfied—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff—

(a) abandons any suit or part of claim under sub-rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(5) Nothing in this Rule shall be deemed to authorise the court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

***

3. Compromise of suit.—Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation.—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this Rule.”

39. Rule 1 of Order 23 speaks of withdrawal of suit or abandonment of part of claim. Rule 1 of Order 23 covers two types of cases: (i) where the plaintiff withdraws a suit or part of a claim with the permission of the court to bring in fresh suit on the same subject-matter, and (ii) where the plaintiff withdraws a suit without the permission of the court.

40. Rule 3 of Order 23, on the other hand, speaks of compromise of suit. Rule 3 of Order 23 refers to distinct classes of compromise in suits. The first part refers to lawful agreement or compromise arrived at by the parties out of court, which is under the 1976 Amendment of CPC required to be in writing and signed by the parties. The second part of the Rule deals with the cases where the defendant satisfies the plaintiff in respect of whole or a part of the suit claim which is different from the first part of Rule 3. The expression “agreement” or “compromise” refer to the first part and not the second part of Rule 3. The second part gives emphasis to the expression “satisfaction”. In Pushpa Devi Bhagat v. Rajinder Singh (2006) 5 SCC 566 this Court has recognised that the distinction deals with the distinction between the first part and the second part:

“19. What is the difference between the first part and the second part of Rule 3? The first part refers to situations where an agreement or compromise is entered into in writing and signed by the parties. The said agreement or compromise is placed before the court. When the court is satisfied that the suit has been adjusted either wholly or in part by such agreement or compromise in writing and signed by the parties and that it is lawful, a decree follows in terms of what is agreed between the parties. The agreement/compromise spells out the agreed terms by which the claim is admitted or adjusted by mutual concessions or promises, so that the parties thereto can be held to their promise(s) in future and performance can be enforced by the execution of the decree to be passed in terms of it. On the other hand, the second part refers to cases where the defendant has satisfied the plaintiff about the claim. This may be by satisfying the plaintiff that his claim cannot be or need not be met or performed. It can also be by discharging or performing the required obligation. Where the defendant so ‘satisfies’ the plaintiff in respect of the subject-matter of the suit, nothing further remains to be done or enforced and there is no question of any ‘enforcement’ or ‘execution’ of the decree to be passed in terms of it.”

41**. Further, it is relevant to note that the word “satisfaction” has been used in contradistinction to the word “adjustment” by agreement or compromise by the parties. The requirement of “in writing and signed by the parties” does not apply to the second part where the defendant satisfies the plaintiff in respect of whole or part of the subject-matter of the suit.

42. The proviso to Rule 3 as inserted by the Amendment Act, 1976 enjoins the court to decide the question where one party alleges that the matter is adjusted by an agreement or compromise but the other party denies the allegation. The court is, therefore, called upon to decide the lis one way or the other. The proviso expressly and specifically states that the court shall not grant such adjournment for deciding the question unless it thinks fit to grant such adjournment by recording reasons.

43. So far as the present case is concerned, the pursis falls under Order 23 Rule 3 since the defendant has satisfied the plaintiffs in respect of whole of the subject-matter of the suit. Since objections were raised by Plaintiff 3 and Defendant 3, those objections had to be dealt with by the court in accordance with Order 23 Rule 3. The proviso to Order 23 Rule 3 cast an obligation on the court to decide that question at the earliest, without giving undue adjournments. Objections raised by Plaintiff 3 and Defendant 3 were examined by the court and rejected, in our view, rightly. Cogent reasons have been stated by the court while rejecting their objections and accepting the pursis.

44††. We have also found that the heirs of Plaintiff 4 did not take steps to record themselves in Civil Suit No. 292 of 1993 till the same was disposed of and hence, as per the provisions of Articles 120 and 121 of the Limitation Act, suit stood abated qua Plaintiff 4. No steps had been taken to set aside the abatement as well. We have also on facts found that Plaintiff 4 during his lifetime executed various documents acknowledging the amounts paid by Mahalaxmi Society. Plaintiff 3, though objected to pursis, later Plaintiffs 3/1 and 3/2 have settled disputes and adopted the contention of Mahalaxmi Society.

45. We are also not much impressed by the argument of the learned Senior Counsel appearing for the respondent that the trial court has committed an error in not consolidating the various suits including Civil Suits Nos. 292 of 1993 and 681 of 1992 to be tried together as ordered by the District Court in its order dated 29-8-2006 in Civil Misc. Application No. 16 of 2005. Section 24 CPC only provides for transfer of any suit from one court to another. The court has not passed an order of consolidating all the suits. There is no specific provision in CPC for consolidation of suits. Such a power has to be exercised only under Section 151 CPC. The purpose of consolidation of suits is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses and the parties are relieved of the need of adducing the same or similar documentary and oral evidence twice over in the two suits at two different trials. Reference may be made to the judgment of this Court in Prem Lala Nahata v. Chandi Prasad Sikaria (2007) 2 SCC 551.

46. The transfer of the suits from one court to another to be tried together will not take away the right of the parties to invoke Order 23 Rule 3 and there is also no prohibition under Order 23 Rule 3 or Section 24 CPC to record a compromise in one suit. Suits always retain their independent identity and even after an order of consolidation, the court is not powerless to dispose of any suit independently once the ingredients of Order 23 Rule 3 have been satisfied.

47. We are, therefore, of the view that so far as the instant case is concerned, there is no illegality in the orders passed by the trial court disposing of the suit under Order 23 Rule 3 CPC accepting the pursis dated 7-7-2008 and 18-9-2008. The High Court, in our view, was not right in upsetting the orders dated 14-8-2008 and 8-9-2009 in Special Civil Suits Nos. 292 of 1993 and 681 of 1992. Consequently, all these appeals are allowed and the common judgment of the High Court is, accordingly, set aside. However, there will be no order as to costs.