Bhagirath Baldevbhai Patel and Others vs Kantaben and Others

Abhilasha Kumari, J.—This Revision Application has been preferred by the petitioners, original defendants Nos. 1 to 7 in Special Civil Suit No. 837 of 2011 filed by the present respondent Nos. 1 to 3, which is pending before the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural). The relief sought in the suit by the original plaintiffs is for declaration and permanent injunction in respect of the suit land. Briefly stated, the facts of the case are that the petitioners have entered into an Agreement for Compromise/Settlement with the original plaintiffs during the pendency of the suit proceedings. As the original plaintiffs did not file an application for withdrawal of the suit even after entering into the compromise, the petitioners moved an application at Exh. 30 under the provisions of Order 7, Rule 11 of the Code of Civil Procedure, 1908 ("C.P.C.", for short) for rejection of the plaint on the ground of compromise between the parties. Vide the impugned order dated 21-6-2013 passed by the trial Court, the said application has been rejected on the sole ground that instead of filing an application under the provisions of Order 7, Rule 11 read with Sec. 151 of C.P.C., the petitioners ought to have filed an application under the provisions of Order 23.

Heard Mr. Mehul S. Shah, learned Advocate for the petitioners and Mr. Prabhav A. Mehta, learned Advocate for respondent Nos. 1 to 3-original plaintiffs (Caveators herein) and perused the contents of the impugned order. Respondent Nos. 6 to 7 are the original defendant Nos. 8 to 11 and as their interest is the same as that of the present petitioners, there is no need to hear them in the present application.

It is submitted by Mr. Mehul S. Shah, learned Advocate for the petitioners that the purpose of filing the application at Exh. 30 was to apprise the Court of the compromise that has been entered into voluntarily between the parties during the pendency of the suit. In view of the said settlement/compromise vide Compromise Deed dated 2-6-2012, no issue remains for adjudication before the trial Court; therefore, in view of the judgment of the Supreme Court in the case of Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, the trial Court ought to have rejected the plaint. Instead of doing this, the application at Exh. 30 has been rejected on the technical ground that it ought to have been filed under the provisions of Order 23, as the parties have entered into the compromise.

Mr. Prabhav Mehta, learned Advocate for the Caveators states, upon instructions, that there is no dispute regarding the settlement entered into between the parties which has already been acted upon by them. No other submissions have been advanced on behalf of respondent Nos. 1 to 3.

Having heard learned Counsel for the plaintiffs and the Caveators, it is amply clear to this Court that the parties have entered into a settlement during the pendency of the suit, which fact is not disputed and has been brought to the knowledge of the trial Court vide the application at Exh. 30, by the petitioners. Nowhere, in the impugned order has the trial Court expressed any doubt regarding the settlement arrived at between the parties. The impugned order has been passed only on the ground that instead of filing the application under Order 7, Rule 11 of the C.P.C., the petitioners ought to have filed it under Order 23.

In the view of this Court, the approach adopted by the trial Court in this regard is a highly technical one, which does not serve the ends of justice, but on the contrary, defeats them.

The principles of law enunciated by the Supreme Court in this regard in the case of Shipping Corporation of India Ltd. v. Machado Brothers (supra), are apt to this case and are reproduced hereinbelow:

Thus, it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the Court to take such action as is necessary in the interest of justice which includes disposing of infructuous litigation. For the said purpose, it will be open to the parties concerned to make an application under Sec. 151 of C.P.C. to bring to the notice of the Court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the Court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.

If the impugned order is perused in light of the above principles of law, it is clear from Paragraph 2 thereof, that the trial Court has considered the application filed by the petitioners to be one under Order 7, Rule 11 read with Sec. 151 of C.P.C.

Section 151 of C.P.C. reads thus:

Saving of inherent powers of Court:

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court.

This provision of law saves the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In the present case, when there remains no doubt that a compromise has been effected between the parties, which is an admitted position, and the said compromise has also been acted upon, the ends of justice would demand that the suit be put to an end. In the circumstances, to continue it would be an abuse of the process of the Court. As respondent Nos. 1 to 3 (original plaintiffs) have not filed an application for withdrawal of the suit even after the compromise, the present petitioners (original defendant Nos. 1 to 7) had no option but to move the application at Exh. 30, may be under a mistaken provision of law. Even so, the trial Court ought to have looked at the substance of the application and not only at the technical format.

Thus, because the application was not filed under Order 23, it does not mean that the trial Court is prevented from taking note of the fact that a settlement has been arrived at between the parties and no fruitful purpose would be served by trying a suit wherein the contentious issues have already been settled. If the trial Court had any objection regarding the provision of law under which the application was filed, it could easily have decided the application in exercise of the inherent powers vested in it under Sec. 151 of C.P.C., as it has treated the application as one under Order 7, Rule 11 read with Sec. 151 of the C.P.C. Considering the above facts and circumstances and in view of the fact that a compromise has been effected between the parties, in the view of this Court, no fruitful purpose would be served by prolonging the suit. Under the circumstances, the following order is passed:

The impugned order dated 21-6-2013 passed by the 4th Additional Senior Civil Judge, Ahmedabad (Rural) below Exh. 30 in Special Civil Suit No. 837 of 2011 is quashed and set aside and the application at Exh. 30 is allowed. Special Civil Suit No. 837 of 2011 pending before 4th Additional Senior Civil Judge, Ahmedabad (Rural), is hereby dismissed.