# MAHALAXMI CO-OPERATIVE HOUSING SOCIETY LTD. & ETC v. ASHABHAIATMARAM PATEL(D) TH. LRS. AND ORS

- **Citation:** [2013] 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2013-03-01
- **Case number:** Civil Appeal Nos. 2050-2053 of 2013
- **Bench:** K.S. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahalaxmi-co-operative-housing-society-ltd-etc-v-ashabhaiatmaram-patel-d-th-lrs-29229
- **Pages:** 31

## Headnote

A
B
Code of Civil Procedure, 1908 - Order XX/I/ r.3 - Civil
suits against original owner of the land in question and C
purchaser-housing society - By the plaintiffs claiming to be
purchasers of the land in question -
In, 'out of court
settlement', one of the plaintiffs by virtue of Power of Attorney
accepting certain amounts for himself and other 4 plaintiffs
- Subsequently two of the plaintiffs (Plaintiff Nos.3 and 4)
D
revoking the Power of Attorney- However, except one plaintiff
(Plaintiff No. 3) all other plaintiffs executing Dead of
Confirmation acknowledging receipt of the amount from the
Housing society - Plaintiff-Power of Attorney holder filing
pursis on his behalf and on behalf of other plaintiffs except
E
Plaintiff No.3 - Trial court disposing of the suits accepting
the pursis - Order of trial court set aside by High Court - On
appeal, held: There was not illegality is disposing of the suits
under Or.XXllJ r.3 accepting the pursis -
Compromise
between the parties was prior to the cancellation of Power of F
Attorney by plaintiff No.3, hence he was bound by the
compromise - Legal heirs of plaintiff Nos.4 are a/so bound
by the compromise as they cannot question the documents
executed by plaintiff No.4 - Since the legal heirs of plaintiff
No.4 did not get themselves impleaded as parties after the
death of plaintiff No.4, the suit stood abated qua them.
G
Suits :
Consolidation of suits - Purpose of - Held: Purpose of
1
H
2
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A consolidation of suits is for meetings ends of justice as it
saves the parties from multiplicity of proceedings, delay and
expenses - Code of Civil Procedure, 1908 - s.151.
Transfer and Consolidation of suits - Effect of - Held:
8
Transfer of suits will not take away the right of the parties to
invoke Or.XX/II r.3 CPC -
Suits always retain their
independent identity - Even after consolidation court can
independently dispose of a suit, if ingredients of Or.XX/II r.3
are satisfied - Code of Civil Procedure, 1908 - s. 24, OR. XX/II
c r.3.
The property in question was sold by respondent
No.6 to respondent Nos.1 to 5 (purchasers) in the year,
1964. The purchasers further executed agreement to sell
the property in question to the appellant-society in the
D year 1975.
Respondent Nos.1, 2, 3 and 5 executed a Power of
Attorney, in favour of respondent No.4 providing that the
same would be binding on respondent Nos. 1, 2, 3 and 5
E and their descendants, guardians and legal heirs.
In the year 1991, respondent No.6 entered into
agreement to sell the property in question to the
appellant-Society and permission was also granted ul
s.20 of Urbans Land (Ceiling and Regulation) Repeal Act,
F 1999. Thereafter, she sold the property to the appellantSociety by two sale deeds.
Respondent No.s1 to 5 filed Special Civil Suit before
High Court challenging the order passed uls.20 of the
G Act. They also filed Civil Suit for a declaration that the
sale-deeds executed by respondent No.6 in favour of the
appellant-Society was illegal.
Respondent Nos.1 to 5, respondent No.6 and the
appellant-Society settled their disputes and thereby
H
MAHAlAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
3
ATMARAM PATEL (D) TH. LRS.
appellant-Society paid an amount of Rs.29, 72,365/- to A
respondent Nos.1 to 5. Notarised Acknowledgementcum-Settlement receipt was also issued. Registered Deed
of Confirmation was executed by respondent No.4 (the
Power of Attorney-holder) for himself and on behalf of
respondent Nos.1, 2, 3 and 5 acknowledging receipt of s
the above-mentioned amount and also further payment
of Rs.30,05,527/- by the appellant-Society. Declarationcum-Indemnity of title was also made, wherein it was
stated that the appellant-Society was the full, legal, proper
and absolute owner and possessor of the land in c
question.
Thereafter, respondent No.3 and respondent No.1
(legal heir of Plaintiff No.4) by public Notice, cancelled the
power of attorney executed in favour of respondent No.4.
They also objec

## Text

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[2013] 6 S.C.R 1
MAHALAXMI CO-OPERATIVE HOUSING SOCIETY LTD.
& ETC.
v.
ASHABHAIATMARAM PATEL(D) TH. LRS. AND ORS.
(Civil Appeal Nos. 2050-2053 of 2013)
MARCH 01, 2013
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
A
B
Code of Civil Procedure, 1908 - Order XX/I/ r.3 - Civil
suits against original owner of the land in question and C
purchaser-housing society - By the plaintiffs claiming to be
purchasers of the land in question -
In, 'out of court
settlement', one of the plaintiffs by virtue of Power of Attorney
accepting certain amounts for himself and other 4 plaintiffs
- Subsequently two of the plaintiffs (Plaintiff Nos.3 and 4)
D
revoking the Power of Attorney- However, except one plaintiff
(Plaintiff No. 3) all other plaintiffs executing Dead of
Confirmation acknowledging receipt of the amount from the
Housing society - Plaintiff-Power of Attorney holder filing
pursis on his behalf and on behalf of other plaintiffs except
E
Plaintiff No.3 - Trial court disposing of the suits accepting
the pursis - Order of trial court set aside by High Court - On
appeal, held: There was not illegality is disposing of the suits
under Or.XXllJ r.3 accepting the pursis -
Compromise
between the parties was prior to the cancellation of Power of F
Attorney by plaintiff No.3, hence he was bound by the
compromise - Legal heirs of plaintiff Nos.4 are a/so bound
by the compromise as they cannot question the documents
executed by plaintiff No.4 - Since the legal heirs of plaintiff
No.4 did not get themselves impleaded as parties after the
death of plaintiff No.4, the suit stood abated qua them.
G
Suits :
Consolidation of suits - Purpose of - Held: Purpose of
1
H
2
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A consolidation of suits is for meetings ends of justice as it
saves the parties from multiplicity of proceedings, delay and
expenses - Code of Civil Procedure, 1908 - s.151.
Transfer and Consolidation of suits - Effect of - Held:
8
Transfer of suits will not take away the right of the parties to
invoke Or.XX/II r.3 CPC -
Suits always retain their
independent identity - Even after consolidation court can
independently dispose of a suit, if ingredients of Or.XX/II r.3
are satisfied - Code of Civil Procedure, 1908 - s. 24, OR. XX/II
c r.3.
The property in question was sold by respondent
No.6 to respondent Nos.1 to 5 (purchasers) in the year,
1964. The purchasers further executed agreement to sell
the property in question to the appellant-society in the
D year 1975.
Respondent Nos.1, 2, 3 and 5 executed a Power of
Attorney, in favour of respondent No.4 providing that the
same would be binding on respondent Nos. 1, 2, 3 and 5
E and their descendants, guardians and legal heirs.
In the year 1991, respondent No.6 entered into
agreement to sell the property in question to the
appellant-Society and permission was also granted ul
s.20 of Urbans Land (Ceiling and Regulation) Repeal Act,
F 1999. Thereafter, she sold the property to the appellantSociety by two sale deeds.
Respondent No.s1 to 5 filed Special Civil Suit before
High Court challenging the order passed uls.20 of the
G Act. They also filed Civil Suit for a declaration that the
sale-deeds executed by respondent No.6 in favour of the
appellant-Society was illegal.
Respondent Nos.1 to 5, respondent No.6 and the
appellant-Society settled their disputes and thereby
H
MAHAlAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
3
ATMARAM PATEL (D) TH. LRS.
appellant-Society paid an amount of Rs.29, 72,365/- to A
respondent Nos.1 to 5. Notarised Acknowledgementcum-Settlement receipt was also issued. Registered Deed
of Confirmation was executed by respondent No.4 (the
Power of Attorney-holder) for himself and on behalf of
respondent Nos.1, 2, 3 and 5 acknowledging receipt of s
the above-mentioned amount and also further payment
of Rs.30,05,527/- by the appellant-Society. Declarationcum-Indemnity of title was also made, wherein it was
stated that the appellant-Society was the full, legal, proper
and absolute owner and possessor of the land in c
question.
Thereafter, respondent No.3 and respondent No.1
(legal heir of Plaintiff No.4) by public Notice, cancelled the
power of attorney executed in favour of respondent No.4.
They also objected to the title of the appellant-Society.
D
However, predecessor of respondent No.1 (Plaintiff No.4,
who later expired) also executed Deed of Confirmation
acknowledging he receipt of the amount abovementioned from the appellant-Society.
Respondent No.4 filed pursis in the suit in his
individual capacity as well as respondent Nos.1, 2 and 5.
Trial court rejecting the objection to the pursis by
respondent No.3, allowed he same and accorded
permission to compound the suit by order dated
14.8.2008. The other suit was also disposed of accepting
similar pursis filed by respondent No.4 by order dated
8.9.2009.
E
F
Respondent No.3 challenged the orders of the trial
court by filing applications under Articles 226 and 227 of G
the Constitution of India. High Court quashed the orders
passed by the trial court. Hence the present appeals.
In the present appeal a Group Co-operative Housing
Society also intervened claiming to have interest in the
H
4
SUPREME COURT REPORTS
[2013) 6 S.C.R.
A property having entered agreement to sell the property
in question with respondent No.4.
Allowing the appeals, the Court
HELD: 1.1. There is no illegality in the orders passed
B by the trial court disposing of the suit under Order XXlfl,
Rule 3 CPC accepting the pursis dated 07.07.2008 and
18.09.2008. The High Court was not right in upsetting the
orders dated 14.08.2008 and 08.09.2009. [Para 45] [31-D-E]
c
1.2. Pursuant to the execution of various documents
by plaintiff No. 1, for himself and on behalf of the other
plaintiffs, decided to record the compromise in both suits,
since all the disputes between them were settled and they
had acknowledged that the appellant-Society was the full,
0
legal, proper and absolute owner and possessor of the
lands in question. Consequently, plaintiff no. 1, on his
behalf and on behalf of the other plaintiffs, except plaintiff
Noi:;. 3/1 and 3/2, prepared a pursis dated 7.7.2008,
referring to the sale deeds executed in favour of the
E appellant-Society in respect of all the properties in
question stating that the plaintiffs had unconditionally
given up all the claims raised in the suit and had settled
the issues with the appellant-Society. The same was then
presented before.the trial court. Plaintiff Nos. 3/1 and 3/2
and defendant No. 3, however endorsed their objection
F
to the pursis. Plaintiff No. 1 fifed an affidavit on stating
that the pursis was given in his individual capacity and
as the power of attorney holder of plaintiff Nos. 2, 4 and
5. The trial Court, after hearing plaintiff nos. 3/1, 3/2 and
defendant no. 3 (intervener), came to the conclusion that
G plaintiff Nos. 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 the
claim of defendant No. 3 rested only on an agreement to
sell, and could not enjoy any right under the Transfer of
H
MAHALAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
5
ATMARAM PATEL (D) TH. LRS.
Property Act and, thereby, allowed the pursis and A
disposed of the suits. [Para 32] [23-G-H; 24-A-EJ
1.3. The documents executed by plaintiff No. 1 for
himself and as a power of attorney holder for others and
the acknowledgment deed; Declaration-cum-indemnity 8
bonds, deeds of confirmation etc. executed by plaintiff
No.2, heirs of 'B', plaintiff Nos. 5/1, 5/2, 5/3 and 514, plaintiff
No. 4 etc. would clearly show that they had received large
amounts from
the appellant-Society and
had
acknowledged that the Society was the full, legal , proper
and absolute owner in possession of the property in C
question. Plaintiff Nos. 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 the appellant-Society. [Para
33] [24-F-H; 25-A]
D
1.4. The heirs of deceased plaintiff No. 4 and plaintiff
Nos. 5/1, 5/2 and 5/4 challenged the judgment and order
dated 14.8.2008, more than one year and six months later.
They had also received large amounts from the appellantE
Society and the heirs of the deceased plaintiff no. 4 did
not take any steps to get them recorded in the Civil Suit
after the death of the plaintiff No. 4, and thus the suit
abated. The heirs of plaintiff No. 4 and plaintiff Nos. 5/1,
5/2 and 5/4 also challenged the judgment and order dated
F
8.9.2009 in Civil Suit No. 681 of 1992 only on 1.3.2011.
Plaintiff No. 4, was duly represented by plaintiff No. 1,
while executing the various registered documents and
issuing Acknowledgement-cum-Settlement Receipts by
which large amounts were received by plaintiff No. 1,
representing plaintiff no. 4. Over and above, plaintiff No. G
4 himself had executed various registered deed of
confirmation dated 5.1.2005 acknowledging the receipt of
Rs.29,32,365/- and also Rs.30,05,527/-. The legal heirs of
plaintiff No. 4 now cannot come forward and question the
H
6
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A . various documents executed by plaintiff No. 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. Plaintiff Nos. 5/1 to 5/4 had also not objected to the
B execution of various deeds and documents and ratified
all the actions taken by plaintiff No.1, as power of attorney
holder, since they had not objected to the pursis dated
07.07.2008, and hence acquiesced to the order dated
14.08.2008. [Para 35) [25-C-H; 26-A-B]
c
1.5. Defendant No. 3-Society i.e. the intervener had
never independently challenged the order dated
14.8.2008 of the trial Court, consequently the order is
binding on defendant No. 3. [Para 34) [25-8)
o
2. In the present case pursis falls under Order XX.Ill,
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 No.3 and defendant
No. 3, those objections had to be dealt with by the court,
E in accordance with Order XX.Ill, Rule 3. The proviso to
Order XX.Ill, Rule 3 cast an obligation on the court to
decide that question at the earliest, without giving undue
adjournments. Objections raised by plaintiff No. 3 and
defendant No.3 were examined by the court and rightly
F rejected. Cogent reasons have been stated by the court
while rejecting their objections and accepting the pursis.
G
[Para 41] [29-H; 30-A-C]
.
Pushpa Devi V. Rajinder Singh (2006) 5 SCC 566: 2006
(3) Suppl. SCR 370 - relied on.
3.1. It is not correct to say that the trial court has
committed an error in not consolidating the various suits,
to be tried together as ordered by the District Court in
its order dated 29.08.2006. Section 24 CPC only provides
H for transfer of any suit from one court to another. The
MAHALAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
7
ATMARAM PATEL (D) TH. LRS.
court did not pass an order of consolidating all the suits.
A
There is no specific provision in the 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
B
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
a~ducing the same or similar documentary and oral c
evidence twice over in the two suits at two different trials.
[Para 43] [30-F-H; 31-A-B]
Prem Lata Nahata and Anr. v. Chandi Prasad Sikaria
(2007) 2 SCC551: 2007 (2) SCR 261 - referred to
3.2. 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 XXlll Rul_e 3 CPC and there
is also no prohibition under Order XXlll 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
XXlll, Rule 3 CPC has been satisfied. [Para 44] [31-C-D]
Case Law Reference:
2006 (3) Suppl. SCR 370 relied on
2007 (2) SCR 261
referred to
Para 37
Para 43
D
E
F
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
G
2050-2053 of 2013.
From the Judgment & Order dated 19.12.2011 of the High
Court of Gujarat, Ahmedabad in Special Civil Application No.
H
8
,
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A 10884 of 2009, 7087 of 2010, 11925 of 2009 and 7088 of
2010.
Mukul Rohatgi, Dr Rajeev Dhawan, Mihir Joshi, Sandeep
Singh, Apurva S. Vakil, Mahesh Agarwal, Rishi Agrawala, E.C.
8
Agrawala, Radhikha Gautam, Rohit Jolly, Shiv Mangal Sharma,
Jyoti Taneja, Abhinandini Sharma, V.D. Khanna, V.K. Monga,
Hari Shankar K., Vikas Singh, Aditya Verma, Jitendra M. Patel,
Dharmendra Kumar Sinha, Jayraj Chauhan, Ritin Rai,
Siddhartha Jha for the appearing parties.
C
The Judgment of the Court was delivered by
K.S. RADHAKRISHNAN, J.1. Leave granted.
2. These appeals arise out of a common judgment
rendered by a learned single Judge of the High Court of Gujarat
D disposing of six special civil applications of which we are
concerned with the· appeals preferred against Special Civil
Application Nos. 7088 of 2010, 10084 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
E quashed the orders dated 14.08.2008 and 08.09.2009 passed
in Special Civil Suit No. 292/1993 and Special Civil Suit No.
681/1992 respectively by the Learned Civil Judge (SD) of
Ahmadabad (Rural) and remanded the matter to the court, after
reviving the interim order dated 28.05.1993 passed in Civil Suit
F No. 292/1993.
3. Civil Suit No. 292 of 1993 was preferred by respondent
No.4 - Chandrakant Atmaram Patel and respondent nos. 1 to
5 herein (purchasers) against respondent no. 6 - Bai Saraswati
G and the appellant herein - Mahalaxmi Co-operative 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 the
Mahalaxmi Society from dealing with the lands and also for
H other consequential reliefs. Chandrakant Atmaram Patel,
MAHALAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
9
ATMARAM PATEL (0) TH. LRS. [K.S. RADHAKRISHNAN, J.]
plaintiff no. 1, plaintiff no. 2 are the heirs of the deceased
A
Baldevprasad (respondent nos. 5/1 and 5/2 herein), the plaintiff
no. 3 are heirs of Manilal Bechardas (respondent nos. 3/1 and
3/2 herein), plaintiff no. 4 is Ashabai Patel (since deceased)
and now through Legal Representatives - respondent nos. 1/
1/A to 1/1/D) and plaintiff no. 5 are heirs of Amrutlal Patel
B
(respondent nos. 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.
292/1993 on the basis of a registered Agreement to Sell dated c
15.6.1992 and joined as defendant no. 3. Civil Suit No. 681/
1992 was also a suit filed by respondent Nos. 1 to 5 against
the Deputy Collector, the appellant herein and the 6th
respondent for an order of permanent injunction on the ground
that no permission under Section 63 of the Tenancy Act was
0
obtained before executing various sale deeds.
4. We have to trace the facts leading to the filing of the
above suits and the disputes cropped up thereafter between
the original plaintiffs, Bai Saraswati and the Mahalaxmi Society,
leading to the filing of pursis dated 7.7.2008 and 18.09.2008
E
and the steps they have taken for resolving those disputes in
Civil SuitNo. 292 of 1993 and Civil Suit No. 681/1992.
5. Bai Saraswati - respondent no. 6 herein - had executed
two Sale Deeds dated 27.10.1964 in respect of separate nonF
contiguous parcels of lands in favour of five persons i.e.
respondent nos. 1 to 5. Respondent nos. 1 to 5 (purchasers)
formed a partnership firm in the name of Mis Arbuda
Corporation on 4.3.1965 to deal with the above-mentioned
properties and each partner had equal share. Mis Arbuda
G
Corporation on 15.9.1975 executed an Agreement to Sell in
favour of the Mahalaxmi Society in respect of the abovementioned lands.
6. The Urban Land (Ceiling and Regulation) Act, 1976 (for
short 'the ULC Act') came into force in 1976. M/s Arbuda
H
10
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A 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, Ahmadabad. Similar applications were also filed by
Respondent No.6 - Bai Saraswati and respondent No. 4 -
B. Chandrakant Atmaram Patel. On 7.1.1989, respondent nos. 5/
1, 5/2 and 5/3, respondent nos. 3/1 and 3/2, respondent no. 1
(since deceased) and respondent no. 2 (since deceased)
executed a Power of Attorney in favour of respondent No. 4 -
Chandrakant Atmaram Patel in respect of the above-mentioned
c properties. The power of attorney provided that the same would
be binding on respondent nos. 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 the Mahalaxmi Society.
0 Permission sought for under Section 20 of the ULC Act was
also granted by the authority to Bai Saraswati for dealing with
the properties.
7. Bai Saraswati then executed two sale deeds dated
5.6.1992 and 8.6.1992 in favour of the Mahalaxmi Society in
E respect of the above-mentioned properties, which led to
various disputes between the Mahalaxmi Society, Bai
Saraswati and the five purchasers mentioned earlier.
8. Respondent Nos. 1-5 then filed Special Civil Application
F No. 4413 of 1992 before the High Court against the Mahalaxmi
Society a'ld 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. Respondent Nos. 1-5, as plaintiffs, filed Special Civil
G Suit no. 681 of 1992 against the Deputy Collector, Ahmadabad,
Mahalaxmi Society and Bai Saraswati on 31.07.1992 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.
H
MAHALAXMI COOP .. HOUS. SOC. LTD. & ETC. v. ASHABHAI
11
ATMARAM PATEL (D) TH. LRS. [K.S. RADHAKRISHNAN, J.]
9. As already.stated, respondent Nos. 1 to 5 had also filed
A
Civil Suit No. 292/1993 on 04.05.1993 against Bai Saraswati
and the Mahalaxmi Society for a declaration that the sale deeds
dated 05.06.1992 and 08.06.1992 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. s
216 in favour of the Mahalaxmi Society.
10. 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
C
of settling all their disputes. As a follow up, the Mahalaxmi
Society, paid an amount of Rs.29,72,365/- to the plaintiffs by
various cheques and a Notarised Acknowledgement-cumSettlement 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
D •
plaintiff for and on behalf of other plaintiffs on the strength of
the power of attorney dated 7.01.1989. The first plaintiff also
executed a declaration-cum-indemnity of title on 09.11.2004
wherein it was stated that the Mahalaxmi Society was the full,
legal, proper and absolute owner and possessor of the
E
properties mentioned therein. Plaintiffs had also agreed to
cooperate in obtaining appropriate orders in Special Civil Suit
No. 681 of 1992 and Special Civil Suit No. 292of1993, in view
of the compromise and settlement.
11. Plaintiff no. 1 - Chandrakant Atmaram Patel had also
executed various documents individually. He executed a
registered Deed of Confirmation dated 10.11.2004, referring
F
to the payment of Rs.29,72,365/- by the Mahalaxmi Society.
Reference was also made to the receipt dated 1.5.2004 and
G
the registered Deed of Confirmation dated 1.5.2004
acknowledging the receipt of Rs.29,72,365/- from the
Mahalaxmi Society by plaintiff No. 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
H
12
SUPREME COURT REPORTS
[2013) 6 S.C.R.
A to a further payment of Rs.66,05,527/- by the Mahalaxmi
Society which was received by plaintiff No. 1 - Chandrakant
Atmaram Patel. Declaration-cum-indemnity of title was also
made on 10.11.2004, wherein it was stated that Mahalaxmi
Society was the full, legal, proper and absolute owner and
B possessor of the above-mentioned lands.
12. Plaintiff No. 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
C proportionate payment of Rs.5,94,473/-. The documents also
refer to the Deed of Confirmation dated 01.05.2004.
Registered Article of Agreement dated 11.11.2004 executed
by the plaintiff No.2 also refers to a further payment of
Rs.66,05,527/- made to the heirs of Baldev Prasad Jamnadas.
. D Declaration-cum-Indemnity of Title dated 10.11.2004 executed
by them acknowledged that the Mahalaxmi Society was the
legal and absolute owner and was in possession of the
properties.
13. Plaintiff Nos. 5/1 to 514, heirs of Amrutbhai Patel, had
E 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
F 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.
14. Plaintiff Nos. 3/1, 3/2 and plaintiff No. 4, however,
issued a public notice on 5.12.2004 in the local newspapers
G (Gujarat Samachar and Dainik Bhaskar) cancelling the power
of attorney dated 7.1.1989 executed in favour of plaintiff No. 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
H
MAHALAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
13
ATMARAM PATEL (D) TH. LRS. [K.S. RADHAKRISHNAN, J.]
Society. On 16.12.2004, plaintiff Nos. 3/1, 3/2 and plaintiff No.
A
4 gave their replies.
15. Plaintiff No. 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
B
Articles of Agreement dated 5.1.2005, plaintiff No. 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 Title
executed on the same day.
c
16. Plaintiff nos. 1, 2/1, 2/2, 4 and 5/1 to 5/4 (all plaintiffs,
except plaintiff No. 3) through their advocates published a
notice in the local newspapers (Sandesh, Gujarat Samachar,
Divya Bhaskar) confirming the above said facts as also the
execution of documents. They had indicated that it was after D
the execution of all the above said documents and receipt of
payments, plaintiff No. 4 had expired on 2.6.2006. Respondent
nos. 1/1/A to 1/1/D, the legal heirs of plaintiff no. 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
E
Suit No. 292 of 1993. Plaintiff No. 1 - Chandrakant Atmaram
Patel -
in the wake of the above-mentioned facts and
circumstances, prepared a pursis on 7.7.2008, the operative
portion of which reads as under:
"By filing following pursis, I, plaintiff declare before
the Hon'ble Court that outside court, amicable settlement
has been arrived at between me and defendants. I, plaintiff,
admit Registered Sale Deeds, bearing Sr. No. 13875,
13881, 13891, 13873, 13886 and 13896 dated 5/6/92 and
F
All Registered Sale Deed No. 14034 dated 8/6/92 and
G
Registered Sale Deeds, Sr. No. 4027 and 4028, dated 18/
10/2000 executed by original landlord, Bai Saraswati d/o
Ashabhai Revandas in favour of Mahalaxmi Co-Op.
Housing Society Limited in respect of suit property
H
14
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A
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
B .
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 Co-op.
Housing Society Limited. In the said suit property, I,
plaintiff, have no right, authority or possession. As per said
c
facts, I, plaintiff, unconditionally waive all contentions raised
by us in this suit and by undergoing cost of the said suit, I
compound the same.
D
Ahmedabad
Dated: 717/2008 Sd/-
(Chandrakant Atmaram Patel)"
The same was filed before the Court. Defendant No. 3 and
plaintiff Nos. 3/1 and 3/2 filed objections to the pursis on
E 31.7.2008. Plaintiff No. 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 1
of power of attorney holder of plaintiff Nos. 2, 4 and 5 and
produced the power of attorney dated 7 .1.1989 before the trial
F 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 above mentioned 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.
G
17. Plaintiff Nos. 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. Plaintiff Nos. 3/1 and 3/2 also
H challenged the order dated 8.9.2009 by filing Special Civil
MAHALAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
15
ATMARAM PATEL (D) TH. LRS. [K.S. RADHAKRISHNAN, J.]
Application No. 11929 of 2009. The heirs of plaintiff No. 4 also
A
challenged the above-mentioned order by filing Special Civil
Application no. 7097 of 201 O and the heirs of the deceased
plaintiff no. 4 also filed Special Civil Application no. 7087 of
201 o. Heirs of plaintiff No. 4 and plaintiff Nos. 5/1 and 512 also
challenged the judgment and order dated 8.9.2009 by filing
B
Special Civil Application no. 7088 of 2010. The High Court
disposed of those applications by a common judgment on
19.12.2011, the iegality of which is under challenge in these
appeals.
18. Mr. Mukul Rohatgi, learned senior counsel appearing
C
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 08.09.2009 were the orders
D
passed by the trial Court in exercise of its powers conferred
under the proviso to Rule 3 of Order XXXlll of the Code of Civil
Procedure (for short 'CPC'). Learned senior counsel submitted
that, at best, the remedy available to the respondents was to
file an appeal under Section 96 read with Order XLlll Rule 1A(2)
E
and Order XLI CPC before the appellate Court. Learned senior
counsel submitted that the pursis was preferred under Order
XXlll Rule 3 CPC and not under Order XXI Rule 1 CPC.
Learned senior counsel submitted that the order dated
14.8.2008 falls under the second part of Order XXlll Rule 3
F
CPC and hence it would be sufficient that plaintiffs or the
plaintiffs' counsel appears before the Court and informs the
Court that the subject matter suit had been settled or satisfied.
Learned senior counsel also submitted that the heirs of the
deceased plaintiff no. 4 and plaintiff nos. 5/1, 5/2 and 5/4 could
G
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 XXll CPC. Plaintiff No. 4 had died on 2.6.2006
, and Civil Suit no. 292 of 1993 had, as such, abated qua the
H
16
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A deceased plaintiff no. 4. Since the heirs, who are respondent
nos. 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,
B those suits stood abated qua plaintiff No. 4. The heirs of the
deceased plaintiff no. 4 had not taken any steps for setting
aside the abatement or to get them substituted on the death of
deceased plaintiff No. 4 in the various suits. Further, it was also
pointed out that plaintiff Nos. 5/1 to 514 had never objected to
C the pursis dated 7.7.2008 and hence acquiesced to the order
dated 14.8.2008 and are estopped from challenging that order.
Learned senior counsel submitted that all disputes with plaintiff
Nos. 3/1 and 3/2 were also settled during the pendency of these
appeals and their objections before the trial Court under
D Special Civil Application Nos. 10884 and 11925 of 2005 did
not survive. Further, learned senior counsel also pointed out that
the power of attorney dated 7.1.1989 executed by respondent
Nos. 5/1, 5/2 and 5/3, respondent Nos. 3/1 and 3/2, respondent
No. 1 (since deceased) and respondent No. 2 (since
deceased} in favour of respondent No. 4 - Chandrakant
E Atmaram Patel, was binding on respondent Nos. 1, 2, 3, 5 and
their descendants, guardians and heirs. 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
F sanctioned by the competent authority and Mahalaxmi Society
had commenced the construction. 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
G amounts. The judgment of the High Court has now unsettled the
things which stood settled. Consequently, learned senior
counsel prayed that the appeals be allowed and the judgment
of the High Court be set aside.
H
19. Shri.J.M. Patel, learned counsel appearing on behalf
MAHALAXMI COOP. HOUS. SOC. LTD. & ETC. v. ASHABHAI
17
ATMARAM PATEL (D) TH. LRS. [K.S. RADHAKRISHNAN, J.]
of the contesting respondents, submitted that the High Court
A
has rightly set aside the order dated 14.8.2008 and directed
the trial Court to take into consideration the objections raised
B
by the respondent herein and to re-hear Exh. Nos. 110 and 172.
Learned senior counsel submitted that the suit was withdrawn
without consent of plaintiff Nos. 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 above
mentioned plaintiffs had executed any document in favour of
Mahalaxmi Society. Learned senior counsel also pointed out
that Bai Saraswati had fraudulently, unauthorizedly and illegally c
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
0
violation of Section 63 of the Tenancy Act read with Section 23
of the Contract Act. Learned senior 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. Learned senior 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 Legal Representatives are plaintiff Nos. 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. 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
authorized them to sign, such a document, according to the
learned senior counsel, could not have been produced before
G
the Court.
E
F
20. Learned senior 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
H
18
SUPREME COURT REPORTS
[2013] 6 S.C.R.
A 2(2) CPC and hence, no appeal could have been filed under
Section 96 read with Order XLlll Rule 1 (1) and Order XLI CPC
before the trial Court. 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,
B . compound the suits for and on behalf of plaintiff Nos. 4 and 5
and the Court should not have allowed the application
withdrawing the suit. 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
c and no prejudice would be caused to the appellants, if the
validity of Exts. 110 and 172 is re-examined. Learned senior
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.
D
21. Dr. Rajeev Dhawan, 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 15.06.1992 with the intervener which
was registered and hence it has right, title and interest over the
E property in question. Further, it was also pointed out that the
intervener has already filed a suit RCS 783/2004 which is
pending consideration before the civil court and hence it has
interest in these proceedings. Learned senior counsel also
submitted that the whole matter should go back to the trial court
F so as to safeguard the interest of the intervener.
22. We,have already referred to the facts leading to the
making of pursis dated 7.7.2008 and 18.09.2008 by plaintiff
No. 1 - Chandrakant Atmaram Patel for himself and as power
G of attorney holder for others and the orders passed thereon on
14.08.2008 and 08.09.2009 allowing the pursis and
compounding the suits Nos. 292/1993 and 681/1992.
23. Bai Saraswati, as already indicated, had executed two
sa1e deeds dated 27 .10.1964 in respect of separate/nonH contiguous parcels of land in favour of respondent nos._ 1 to 5. _
MAHALAXMI COOP. HOUS. SOC. L m. & ETC. v. ASHABHAI
19
ATMARAM PATEL (D) TH. LRS. [K.S. RADHAKRISHNAN, J.]
Schedule to that documents refer to the survey numbers and
A
properties sold. Respondent No. 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
B
by Mahalaxmi Society, Bai Saraswati and respondent No. 4 -
Chandrakant Atmaram Patel. Respondent nos. 5/1, 5/2 and 5/
3, respondent nos. 3/1 and 3/2, respondent No. 1 (since c
deceased) and respondent No. 2 (since deceased) had on
07.01.1989 executed a power of attorney before the Public
Notarized Civil Court, Ahmedabad city, in favour of respondent
No. 4 - Chandrakant Atmaram Patel in respect of properties
mentioned earlier conferring authority on him to deal with their
0
property for other plaintiffs and the same would be binding on
respondent Nos. 1, 2, 3, 5 and their descendants, guardians
and heirs. Bai Saraswati, afterc·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.
E
24. We notice that disputes then cropped up between
Mahalaxmi Society, Bai Saraswati and respondent Nos. 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
F
stated in the earlier part of this judgment, hence not reiterated.
Respondent Nos. 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
G
Mahalaxmi' Society from dealing with the lands. Plaint was
signed by' respondent No. 4 - Chandrakant Atmaram Patel,
plaintiff No. 2 who are heirs of deceased Baldevprasad (present
respondent Nos. 5/1 and 5/2), plaintiff no. 3 who are heirs of
Manila! Patel (present respondent Nos. 3/1 and 3/2), plaintiff
H
20
SUPREME COURT REPORTS
(2013] 6 S.C.R.
A No. 4 Ashabhai Patel (since deceased) now through
respondent Nos. 1/1/A to 1/1/D and plaintiff No. 5 who are heirs
of Amrutlal Patel (present respondent Nos. 2/1, 212, 213 and 7).
Contesting respondents, therefore, were duly represented in
Civil Suit No. 292 of 1993.
B
25. 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 above mentioned suits
were pending, efforts were made for settling the entire disputes
C between parties, consequently, plaintiff No. 1 - Chandrakant
Atmaram Patel, for himself and as power of attorney holders
for other plaintiffs executed various documents and entered into
various transactions. Plaintiff No. 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
D Notarized Acknowledgement-cum-Settlement Receipt dated
1.5.2004. On the same day, a Deed of Confirmation was also
regis:ered, which also refers to the above mentioned payment
made by Mahalaxmi Society to the plaintiffs. In the Declarationcum-Indemnity of Title dated 9.11.2004, it has been clearly
E stated that Mahalaxmi Society is the full, legal, proper and
absolute owner and possessor of the above mentioned
properties. Further, it is also provided in the said declaration
that the plaintiffs had agreed to co-operate in obtaining
appropriate orders from the Court in pending cases, including
F 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 No. 3, he did not encash the same. Above-mentioned
are the documents executed by plaintiff No. 1 for himself and
G on behalf of other plaintiffs on the strength of the power of
attorney dated 7.1.1989.
26. Plaintiff No.