Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7208  OF 2010 [Arising out of SLP [C] No.9733 of 2007]

Hussainbhai Allarakhbhai Dariaya & Ors. … Appellants

Vs.  

State of Gujarat & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.  

2. The  appellants  are  aggrieved  by  the  rejection  of  their  application  

seeking  permission  to  file  a  second  appeal.  The  Samast  Sunni  Muslim  

Jamat, Damnagar (6th respondent herein, for short the ‘Jamat’) represented  

by its Secretary filed a suit against respondents 1 to 5  in the court of the  

Civil Judge (Senior Division), Amreli (Regular Civil Suit No.240/1995) for  

a  declaration  that  they  are  the  owners  in  possession of  land  bearing old  

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survey  No.248,  Damnagar.  They  also  sought  a  permanent  injunction  

restraining the fifth respondent Damnagar Gram Panchayat (now Damnagar  

Nagarpalika) from interfering with the right of the plaintiff to construct a  

compound wall/fencing around the Kabrastan. They also sought a direction  

to respondents 1 to 5 to remove any encroachments over the said Kabrastan  

land.

3. After contest,  the said suit  was decreed in part by the Civil  Judge,  

Senior Division, Amreli by judgment and decree dated 29.11.2003. The trial  

court declared that the plaintiff Jamat was the owner of plot Nos. 23, 24,  

25,26  and  28  (described  in  the  annexed  order  of  District  Development  

Officer dated 13.10.1977, canceling the auction of those plots) and granted a  

permanent injunction restraining the defendants from obstructing or interfering  

with the possession of the plaintiff Jamat. The trial court however rejected  

the claim of the plaintiff Jamat in regard to old survey No.248 in the absence  

of exact measurements and boundaries of the said land.

4. Feeling aggrieved, the said Jamat filed an appeal before the Assistant  

District  Judge,  Amreli  (Regular  Civil  Appeal  No.67/2003).  In  the  said  

appeal, the following  pursis dated 3.8.2004 (Ex.17) was filed by the four  

trustees of the Jamat :  

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“We, the appellants submit the said pursis in this case and declare that :-

(1) We,  the  appellants  have  filed  the  present  appeal  against  the  respondent. In the said appeal, the consent pursis and agreement has been  made between the members of both community and the Panchayat in the  decree of the trial court. Therefore, the appeal does not remain to be tried  further. Therefore, we withdraw the appeal unconditionally.

(2) The Grampanchayat Damnagar, villagers and the members of the  community  have  to  do  and  behave  as  per  the  compromise  agreement  herewith and carry out the agreement specifically and we withdraw the  appeal accordingly.

(3) Therefore, we agree and declare by the pursis that the appeal may  be disposed off accordingly.”

The  said  pursis  also  contained  an  endorsement  by  the  Sarpanch  and  

Secretary  of  Damnagar  Grampanchayat  confirming  that  they  would  not  

insist for any costs of the suit.

5. The  compromise  agreement  referred  to  in  the  said  pursis  dated  

3.8.2004 was entered into between two groups of residents of Damnagar,  

namely the Samast Sunni Muslim Jamat as the leaders of the Muslim Samaj  

and  the  leaders  of  the  Samast  Hindu  Samaj.  The  said  compromise  is  

extracted below :

“(1) The status quo which is obtained by Bavbhai Gajibhai Chudasama  and others with respect to the land admeasuring 30,000 Sq.Feet, situated at  the eastern side at Chhabhadia Road, allotted vide the Government Order  to Shree Akshar Purshottam Swaminarayan Trust shall be withdrawn.

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(2) The land admeasuring 120m x 90 feet = 10,800 Sq. Feet situated  after  leaving  the  road  from Dargah  at  the  western  side  from the  land  allotted to the Trust, shall be left for the Sunni Muslim Jamat.

(3) For the social activity no construction activity for constructing the  houses by the Sunni Muslim Jamat shall be allowed. The land shall be left  for open place.

(4) Pursuant to the order of the Honourable Court from amongst the  five plots, the present land is allotted.

(5) Except the land admeasuring 10,800 Sq. Feet allotted to the Sunni  Muslim Jamat, all the entire land shall remain of the Akshar Purshottam  Trust.

(6) With regard to the said land, now after any party from amongst  both the party shall not raise any dispute before the Government Office or  in the Court.

(7) With regard to the land allotted to the Akshar Purshottam Trust  any  dispute  which  is  raised  previously  and  with  reference  to  the  said  dispute  any  party  shall  give  the  consent  in  the  Government  Office  or  before the Court in respect of the point of Compromise.

(8) The case which is proceeding in the Tribunal with reference to the  land of the said Trust, for the same Bavjibhai Gajibhai Chudasama and  Daudbhai R. Pathan shall withdraw the case.

The said Agreement of Compromise is executed with aim to prevail peace  and  harmony  in  between  the  Hindu  and  Muslim  and  for  maintaining  Hindu Muslim unity for years to come and with an aim of avoiding any  obstruction in the peace and harmony and the recent festival cannot be  affected and for the larger interest of the future and which is executed by  our consent and willingness and for the same we are putting our signature  below.”  

The said agreement was not a compromise petition between the plaintiffs  

and the defendants in the suit, or between the appellants and respondents in  

the appeal, but an agreement said to have been reached by the leaders of two  

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communities,  signed by 14 persons on behalf of the Sunni Jamat and 19  

persons on behalf of the Hindu Samaj.

6. On the said pursis dated 3.8.2004 (Ex.17) filed by the Jamat, the first  

appellate court made the following order dated 3.8.2004 :

“Both the parties present before the Court and have submitted the joint  consent  pursis.  Moreover,  the  L.A.  for  the  concerned  party  as  well  as  Sarpanch and Secretary of Damnagar Gram Panchayat have also signed  the consent pursis. Further more, the consent pursis has read over to the  parties who have submitted one agreement along with the consent pursis is  also  read  over  to  them  and  they  have  also  admitted  the  facts  of  the  agreement which is submitted along with the consent pursis and they have  stated in their consent pursis that as per the agreement, the appeal should  be disposed of and as per their contentions contained in the consent pursis  and agreement,  this  application  is  hereby granted,  with  no  order  as  to  costs.”

The appeal was disposed of by the following order dated 3.8.2004:

“In view of the consent pursis along with the agreement submitted by both  the parties before this Court on 03-08-04 and have agreed to dispose of  this  appeal  according  to  the  consent  pursis  and  agreement,  have  also  agreed to draw the  decree  according to the  agreement  which has  been  submitted along with the consent pursis and, therefore, the consent pursis  has  been  granted  by  this  Court.  So,  this  appeal  is  hereby disposed  of  according to the consent pursis at Exh. 17 along with the agreement and  the decree is hereby drawn according to the agreement which submitted  along with the consent pursis and hence, this appeal is hereby disposed of  accordingly, with no order as to costs.”

7. The  appellants  who  claimed  to  be  the  individual  members  of  the  

Sunni Jamat, and who were not parties either to the suit or the first appeal,  

were  aggrieved by the  said  compromise  resulting in  disposal  of  the  first  

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appeal  as  according to them, 30,000 sq.  ft.  of   Kabrastan land had been  

unauthorisedly given to Akshar Purshottam Trust. According to appellants  

the  Sunni  Jamat  had  no  legal  authority  to  deal  with  or  give  away  the  

Kabrastan (wakf) land for any purpose other  than the use of Muslims in  

Damnagar.  They therefore filed a second appeal  before the Gujarat  High  

Court challenging the order disposing of the first appeal. As they were not  

parties to the first appeal, they also filed an application seeking permission  

to file the appeal.

8. A learned Single Judge of the High Court dismissed the application  

for permission to file the second appeal.  Consequently the second appeal  

was also dismissed by order dated 13.10.2006. The High Court held that the  

Sunni Jamat had not filed a suit in a representative capacity under Order 1  

Rule 8 of the Code of Civil Procedure (‘Code’ for short); that it was not the  

contention of the appellants that the Secretary of the Sunni Jamat was not  

entitled  or  authorized  to  file  a  suit;  that  if  the  Secretary  represented  the  

interests  of  the  members  of  the  Jamat,  then  the  suit  was  by  a  person  

authorized by the members of the Jamat and not by a person filing a suit in  

his representative capacity; that as the suit by the Secretary of the Jamat was  

not a representative suit either for purpose of section 92 or for the purpose of  

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Order 1 Rule 8 of the Code, it cannot be taken to be a representative suit for  

the  purpose  of  Order  23  Rule  3B  of  the  Code;  and  that  therefore  the  

application seeking leave to file the second appeal and the second appeal by  

the appellants were not maintainable. The said judgment is challenged by the  

appellants in this appeal by special leave.

9. We may have to notice the relevant provisions of law before referring  

to the rival contentions. Rule 1 of Order 23 provides for withdrawal of a suit  

or  abandonment  of  a  part  of  a  claim.  Rule  3  of  Order  23  provides  for  

compromise of a suit and the relevant portion thereof is extracted below :

“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:”

Rule 3A of Order 23 provides that no suit shall lie to set aside a decree on  

the ground that the compromise on which the decree is based was not lawful.  

Rule 3B of Order 23 provides that no agreement or compromise shall  be  

entered  in  a  representative  suit  without  leave  of  court.  The  said  rule  is  

extracted below :

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“3B. No agreement or compromise to be entered in a representative  suit without leave of Court.—(1) No agreement or compromise in a  representative suit shall be entered into without the leave of the Court  expressly  recorded  in  the  proceedings;  and  any  such  agreement  or  compromise entered into without the leave of the Court so recorded shall  be void.

(2)  Before  granting  such  leave,  the  Court  shall  give  notice  in  such  manner as it  may think fit  to such persons as may appear to it  to be  interested in the suit.

Explanation.—In this rule, “representative suit” means,--

(a) a suit under section 91 or section 92,

(b) a suit under rule 8 of Order I,

(c) a suit in which the manager of an undivided Hindu family sues or is  sued as representing the other members of the family,

(d)  any  other  suit  in  which  the  decree  passed  may,  by virtue  of  the  provisions of this Code or of any other law for the time being in force,  bind any person who is not named as party to the suit.”

Order  43  Rule  1A relates  to  right  to  challenge  non-appealable  orders  in  

appeal against decrees and sub-rule (2) thereof is extracted below :

“(2)  In  an  appeal  against  a  decree  passed  in  a  suit  after  recording  a  compromise or refusing to record a compromise, it shall be open to the  appellant to contest the decree on the ground that the compromise should,  or should not, have been recorded.”  

10. A compromise of a suit  is governed by Rule 3 of Order 23 of the  

Code. However, if the suit which is compromised, is a representative suit,  

two additional requirements of Rule 3B will also have to be complied with.  

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They are : (i) compromise cannot be entered without the leave of the court  

expressly recorded in the proceedings; and (ii) before granting such leave,  

the  court  shall  give  notice  to  such  persons  as  may  appear  to  it  to  be  

interested in the suit. The Explanation to Rule 3B defines four categories of  

suits as “representative suits” for the purpose of the said rule : (a) suits under  

section 91 or section 92 of the Code;  (b)  suits under Order 1 Rule 8 of the  

Code; (c) suits in which the manager of an undivided Hindu Family sues or  

is sued as representing the other members of the family; and (d)  suits in  

which the decree passed may bind any person who is not named as a party to  

the suit  by virtue of the provisions of the Code of Civil Procedure or any  

other law for the time being in force. If a suit should answer the definition of  

a ‘representative suit’ under clause (d) of the Explanation, two conditions  

should be satisfied – (i) the decree passed in the suit should bind the person  

who is not named as a party to the suit; and (ii) the decree should so bind a  

person who is not named as a party to the suit, by virtue of the provisions of   

the Code or any other law for the time being in force.   

11. Learned  counsel  for  the  appellants  contended  that  the  High  Court  

committed a serious error in assuming that the leave of the court for entering  

into  a  compromise  would  be  required  only  in  a  representative  suit  filed  

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under section 91 or 92 of the Code or under Order 1 Rule 8 of the Code, or a  

suit  in  which  the  manager  of  an  undivided  family  sues  or  is  sued  as  

representing  the  other  members  of  the  family.  According  to  appellants,  

having regard to the Explanation under Rule 3B, even if a suit is not filed  

under Order 1 Rule 8 of the Code, if the decree passed in a suit would bind  

any person who is not a party to such suit, by virtue of the provisions of the  

Code  or  any  other  law  for  the  time  being  in  force,  then  it  will  be  a  

“representative  suit”  for  the  purpose  of  Order  23  Rule  3B of  the  Code,  

having regard to clause (d) of the Explanation. It is submitted that as the  

decree in a suit to which a Jamat is a party, would bind all members of the  

Jamat who are not parties to such suit, the suit by or against the Jamat is to  

be considered as a representative suit for the purpose of clause (1) of Rule  

3B of Order 23 and consequently a compromise could be entered in a suit to  

which the Jamat is a party, only with the leave of the court granted after  

giving notice to all the members of the Jamat. It  is submitted that as the  

leave of the court was not obtained for entering into such a compromise and  

as  the  court  did  not  give  notice  to  persons  interested  in  the  suit,  the  

compromise was not a valid compromise and any person affected by the said  

compromise  could  challenge  the  same  by  filing  a  second  appeal  having  

regard to the provisions of Order 43 Rule 1A(2). The appellants submit that  

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category (d)  under the Explanation to Rule 3B was ignored by the High  

Court.

12. On the other  hand,  the  respondents  contended that  the  suit  by  the  

Jamat  was  not  a  representative  suit.  They  submitted  that  the  appellants  

admitted that the suit of the Jamat did not fall under categories (a) to (c)  

enumerated in the Explanation to Rule 3B. They contended that for a suit to  

fall under clause (d) of the Explanation to Rule 3B, it is necessary that the  

decree made in such suit should bind a person who is not a party to the suit  

by  virtue  of  the  special  provisions  in  the  Code  or  any  other  law.  It  is  

submitted that  there is  no provision in the Code or  any other  law which  

make the decree in a suit by or against the Jamat, binding on a person who is  

not a party to the suit. It is submitted that the argument of the appellants if  

accepted, would mean that even where a compromise is entered in suits to  

which a company (incorporated under the Companies Act) or a co-operative  

society  (registered  under  the  Cooperative  Societies  Act)  or  a  society  

(registered  under  the  Societies  Registration  Act)  is  a  party,  it  would  be  

necessary  to  treat  them  as  representative  suits  and  issue  notice  to  all  

members thereof on the ground that the decree passed in such suits, would  

bind members of such company, co-operative society or society, who are not  

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parties  to  the  suit.  The  respondents  submitted  such  a  position  would  be  

untenable.

13. It is unnecessary to examine the question as to the constitution of the  

Jamat or the question whether a suit by or against the Jamat will bind all  

members of the Jamat or the question whether the members of the Jamat will  

be so bound by virtue of any specific provision in the Code or any other law,  

as these questions do not arise in this case.  

14. The  compromise  alleged  was  not  between  the  parties  to  the  

suit/appeal. As noticed above, the defendants/respondents were the State of  

Gujarat,  the  Mamlatdar  of  Lathi,  Amreli  District  Panchayat,  the  Taluka  

Development Officer of Lathi and the Damnagar Gram Panchayat. None of  

them were parties to the compromise.  Even the Jamat represented by the  

Secretary, was not a party to the compromise. The alleged compromise was  

between  two  groups,  namely,  14  persons  representing  the  Muslim  

community of Damnagar and 18 persons representing the Hindu community  

of Damnagar. Therefore, it cannot be said to be a compromise between the  

parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can  

be made in terms of the compromise only insofar as it relates to the parties  

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to the suit.  Where either  plaintiff-appellants  or  the defendant-respondents  

were not parties, it cannot be said that there was a compromise between the  

parties to the suit or appeal.

15. The pursis (Memo – Ex.17) filed by the appellants in the first appeal  

stated  that  the  trustees  of  the  Jamat  were  withdrawing  the  appeal  

unconditionally, in view of the compromise reached between two groups of  

people who were not parties to the appeal. The parties to the appeal, that is  

the appellants and respondents did not sign or file  any compromise petition  

before the court. The first appellate court could not therefore direct that a  

decree be drawn up in terms of the ‘compromise’ between two sets of non-

parties,  while dismissing the first appeal as withdrawn. Though the order  

dated 3.8.2004 disposing of  the  first  appeal  stated  that  a  decree  shall  be  

drawn  according  to  the  “agreement”  submitted  along  with  the  consent  

pursis, no such decree has been drawn. We are informed that recently the  

first appellate court has made an order refusing to draw a decree in terms of  

the  compromise  between  non-parties,  as  the  appeal  was  disposed  of  in  

pursuance of the memo of withdrawal. Be that as it may.  

16. When an appeal  has been withdrawn by the persons who filed the  

appeal, it is not open to some other parties to file an appeal challenging the  

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withdrawal  of  the  first  appeal  on  the  ground  that  a  ‘compromise’  was  

illegally entered. As noticed above, the parties to the suit had not entered  

into any compromise and the court had not passed a decree in terms of the  

compromise. In fact the court could not pass any decree in terms of the said  

compromise as it was not between the parties to the appeal. The request of  

the Jamat was for withdrawal of the first appeal and that request was granted  

and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor  

Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at  

the instance of any non-party, as there is no appealable order or decree.

17. We are therefore of the view that the appeal by the appellants was not  

maintainable and the refusal to grant leave to appeal was justified, though  

for reasons different from what has been mentioned by the High Court. We  

however make it clear that the refusal to grant leave would not come in the  

way of the appellants pursuing any claim or remedies, if any, available in  

accordance with law.

……………………………J. (R V Raveendran)

New Delhi; ………………………….J. August 31, 2010. (H L Gokhale)  

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