Supreme Court of India
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS.versusSTATE OF GUJARAT & ORS.
- Citation
- 2010 INSC 558
- Decided
- 31 August 2010
- Disposal
- Dismissed
Holding
The second appeal by non‑parties is not maintainable as the compromise was not between the parties and the suit is not a representative suit, so Order 23 Rule 3 and Rule 38 do not apply.
Summary
The Samast Sunni Muslim Jamat filed a suit seeking ownership of land, which was partially decreed by the trial court. The Jamat filed an appeal, but withdrew it through a pursis citing a compromise agreement that was actually between two community groups, not the parties to the suit. The first appellate court disposed the appeal based on that compromise, and later members of the Jamat who were not parties to the original suit filed a second appeal challenging the withdrawal. The Supreme Court examined whether the compromise could be enforced under Order 23 Rule 3 and whether the suit was a "representative suit" requiring leave of court under Rule 38. It held that the compromise was not between the parties, the suit did not fall within the definition of a representative suit, and consequently no decree could be drawn and no leave was required. Accordingly, the second appeal was deemed non‑maintainable and was dismissed.
Issues considered
- Whether the compromise agreement filed was between the parties to the suit/appeal and thus enforceable under Order 23 Rule 3 of the CPC.
- Whether the suit filed by the Jamat qualifies as a representative suit under the Explanation to Order 23 Rule 38, requiring court leave and notice.
- Whether a second appeal by persons who were not parties to the original suit or first appeal is maintainable.
Legislation cited
- Code of Civil Procedure, 1908s. Order 1 Rule 8, s. Order 23 Rule 3, s. Order 23 Rule 38, s. Order 23 Rule 3-B, s. Order 43 Rule 1A, s. Section 91, s. Section 92
Subjects
compromiserepresentative suitOrder 23Civil Procedurewithdrawal of appealnon‑party appealdecreeleave of court
Judgment
[2010] 10'S'.C.R. 731 '
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. A
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 7208 of'2010)
AUGUST 31, 2010
B
[RN,· RAVEENDRAN'AND H; L. GOKHALE; JJ;]
Code of Civil Procedure, 1908:
Or 23, r.3 and 3-B - Compromise of a suit/appeal - c
Requirements to be. complied with - Explained - HELD: In
the instant case, the compromise alleged was not between
the parties to the suit/appeal, butwas between two groups of
two communities - Further a decree can be made in terms
of compromise only in so far as it relates to the parties to the 0
suit - Ultimately, first appellate court made an oi;der refusing
to draw a decree in terms ofthe 'compromise' between non-
parties, as the appeal was disposed ofin pursuance of·the
memo·of withdrawal.
Or. 23, r. 3-B, Explanation - "Representative suit" - E
Explained.
s, 100.- Secondappealfiled. with application for leave· to
file appeal by persons who were not parties to suit/first appeal
- Maintainability of - In the instant case, the parties to the F
suit/appeal 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 - Request of the plaintiff/appellant was for withdrawal G
of the first appeal and that request was granted and the appeal
was dismissed as withdrawn -- When an appeal has been
withdrawn by the persons who filed the appeal, it is not open
to some other parties to file second appeal challenging the
731 H
•
732 SUPREME COURT REPORTS [2010] 10 S.C.R.
A withdrawal of the first appeal on the ground that a 'compromise'
was illegally entered - Neither 0. 23, r.3, nor 0. 23, r. 3-B was
attracted.
Plaintiff-respondent No. 6, namely, the Samast Sunni
Muslim Jamat Damnagar (Jamat), represented by its
8
Secretary, filed a suit against respondent Nos. 1 to 5, inter
a/ia, for declaration that it was the owner-in-possession
of old Survey No. 248. The trial court though granted the
other reliefs, rejected the claim of the plaintiff as regards
Old Survey No. 248. In the first appeal filed by the plaintiff,
C a consent 'pursis' signed by 4 Trustees of the Jamat and
endorsed by the Sarpanch and the Secretary of the
Grampanchayat was filed. Subsequently, a compromise
agreement entered into between leaders of 'Muslim
Samaj' and "Samast Hindu Samaj', was filed. The first
D appellate court disposed of the appeal in terms of the
consent 'pursis' and the agreement. The appellants, who
were neither parties to the suit nor to the first appeal, but
claimed to be the members of the Jamat, filed a second
appeal before the High Court, with an application seeking
E permission to file the appeal. The High Court held that the
Jamat had not filed the suit in a representative capacity
and, therefore, the application seeking leave to file the
second appeal and the second appeal filed by the
appellants were not maintainable.
F
Dismissing the appeal, the Court
HELD: 1. The second appeal by the appellants was
not maintainable and the refusal to grant leave to appeal
was justified, though for reasons different from what has
G been mentioned by the High Court. [para 17) [745-F-G]
2.1 A compromise of a suit is governed by Rule 3 of
Order 23 of the Code of Civil Procedure, 1908. However,
if the suit which is compromised, is a representative suit,
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 733
STATE OF GUJARAT
two additional requirements of Rule 38 will also have to A
be complied with. 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 B
38 defines four categories of suits as "representative
suits" for the purpose of the said rule : (a) suits u/s 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 c
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 0
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 E
provisions of the Code or any other law for the time being
in force. [para 10) [742-8-F]
2.2 In the instant case, the compromise alleged was
not between the parties to the suit/appeal. The
defendants/respondents were the State Government, the F
Mamlatdar, Development Officer and the 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 G
community and 18 persons representing the Hindu
community of the locality. 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
H
-
734 SUPREME COURT REPORTS. (2010] 10 S.C.R;
A madedn .terms of the compromise only, insofar as it relates
to-the·parties to the suit. Where either plaintiff-appellants
or~the,defendant-respondents were notparties, it.cannot
be said.that there was a compromise between the parties
to the. suit or appeal. [para 14] -[7 44-D-G]
B
1'.3 The pursis (Memo - E.X.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
C 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:appeHate court•could not; therefore, direct that:a
decree· be drawn up in terms of the 'comp.romise'
between two sets of non-parties, while dismissing, the
D first appeal as withdrawn. Though the order 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. It has
also been brought to the notice of the Court that recently
E 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: [para 15] [744-H; 745"A~C],
F 1:4'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 withdrawal
of the first appeal on the ground that a 'compromise' was
illegally,entered. In the instant case, the parties to the suit
had.notenteredJnto any compromise and the-court.had
G riot:passed:a.decree ·in·terms of the compromise. In fact,
the.-court could not pass, any.decree. in terms of the said
compromise as 0 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
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA &.ORS. v. 735
STATE OF GUJARAT
appeal' was. dismissed as withdrawn: Neither. Order;-23 A
Rule·3; nor Order,23 .Rule 3-B·was:attracted: Therefore, a,
second~appeal1would1not·lie·at·the,instance·of•any;non•
party, as>there·is.no appealable·order or dec"ree: (para116]
(745-C-F]i
B ..
CIVIL APPELLATE JURISDICTION.: Civil Appeal No.
7208 of 2010.
From the Judgment & Order dated 13.10.2006 of the High
Court·of Gujarat at Ahmedabad in Civil Application No. 3427
of 2006 with Civil Application ~No: 3429 of'2006'with Second C
Appeal 70. of 2005 with Civil Application 1985 of 2005 in
Second Appeal 70 of 2005.
Huzefa Ahmadi, Ejaz· Maqbool, Sakshi Banga, Garima
Kapoor, Mohd. Tahir Hakim for the Appellants. D
Raju Ramachanc,'lran, Mitul Shehlat, Milind Kumar, Madhvi
Divan; Hemantika Wahi, Jesal for the Respondents: ·
The Judgment of the Court was delivered by
E
Rv:· RAVEENDRAN,' J, 1: Leave granted.
2. The appellants are aggrieved by the rejection ·oftheir
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 F
a suit against respondents 1 to 5 in the court ofthe 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 survey No.248, Damnagar. They also sought a
permanent injunction restraining the fifthrespondentDamnagar G
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 overthe said
Kabrastan land. H·
736 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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
c 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
D Jamat:
"We, the appellants submit the said pursis in this case and
declare that :-
(1) We, the appellants have filed the present appeal
E
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
F 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
G 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."
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 737
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
The said pursis also contained an endorsement by the A
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 8
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 C
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. D
(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.
E
(3) For the social activity no construction activity for
constructing the houses b, 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 F
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.
G
(6) With regard to the said land, now after any party from
amongst both the party shall not raise ariy dispute before
the Government Office or in the Court.
(7) With regard to the land allotted to the Akshar H
738 SUPREME COURT REPORTS [2010] 10 S.C.R.
A '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
B
.reference to the land of the said Trust, for the same
.Bavjibhai Gajibhai,Chudasama and .Daudbhai R. Pathan
-st.iall,withdraw the case.
The said Agreement of Compromise is executed with aim
c ·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
D 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
E appellants and respondents in the appeal, but an agreement
said to have been reached by the leaders of two communities,
:signed•by '14~persons on behalf of the Sunni Jamat and 19
:persons.offbehalf of the Hindu Samaj.
6. On the said pursis dated 3.8.2004 (Ex.17) filed by the
F <lamat,lthe'fin~t appellate court made the following order dated
3.8.2004 :
·''Both 'the· parties :present ·before the Court and have
submitted"thejoint consent pursis .. Moreover, the L.A. for
G 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
0
along with ·the consent pursis is also read over to them
.am:hthey have.also admitted the facts of the agreement
·H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 739
STATE OF GUJARAT [R.V. RAVEENDRAN, J.)
which is submitted along with the consent.pursis and they A
rhave stated in their consent ·pursis that as :penthe
0
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." fi
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- C
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 o
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 ·E
order as to costs."
7. The appellants who c' imed ·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 appeal as F
according tothem, 30,000 sq. ft. of Kabrastan.land.had·been
unauthorisedly.given·to AksharPurshottam 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 G
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.
H
740 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
8 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
C 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 oot a representative suit either for purpose of
section 92 or for the purpose of Order 1 Rule 8 of the Code, it
cannot be taken to be a representative suit for the purpose of
Order 23 Rule 38 of the Code; and that therefore the application
D 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
E 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
F 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
G 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:"
H
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 741
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
Rule 3A of Order 23 provides that no suit shall lie to set aside A
a decree on the ground that the compromise on which the
decree is based was not lawful. Rule 38 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 : B
"38. 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 C
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 D
appear to it to be interested in the suit.
Explanation.-ln this rule, "representative suit" means,-
(a) a suit under section 91 or section 92,
E
(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,
F
(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."
G
. 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
H
742 SUPREME COURT REPORTS (2010) 10 S.C.R.
A 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."
B 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 38
will also have to be complied with. They are : (i) compromise
cannot be entered without the leave of the court expressly
C 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 38 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
D 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
E 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
F 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
G of the court for entering into a compromise would be required
only in a representative suit filed 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
H appellants, having regard to the Explanation under Rule 38,
HUSSAIN8HAI ALLARAKH8HAI DARIAYA & ORS. v. 743
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
even if a suit is not filed under Order 1 Rule 8 of the Code, if A
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 38 of the
Code, having regard to clause (d) of the Explanation. It is B
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
38 of Order 23 and consequently a compromise could be C
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
0
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 category (d) under
the Explanation to Rule 38 was ignored by the High Court.
E
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 38. They contended that for a suit to fall under clause F
(d) of the Explanation to Rule 38, 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 G
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
H
744 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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,
8 who are not parties to the suit. The respondents submitted such
a position would be untenable.
13. It is unnecessdry 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
C 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
D 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
E 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
F 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 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.
G
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
H not parties to the appeal. The parties to the appeal, that is the
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 745
STATE OF GUJARAT [R.V. RAVEENDRAN, J.]
appellants and respondents did not sign or file any compromise A
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 B
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
betwe;rn non-parties, as the appeal was disposed of in c
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 withdrawal of the first appeal on the
ground that a 'compromise' was illegally entered. As noticed D
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 E
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 38 was attracted. Therefore a second
appeal would not lie at the instance of any non-party, as there
is no appealable order or decree. F
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 G
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.
R.P. Appeal dismissed.
H
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