Keeping in mind the aforesaid legal principles, in our view, the order passed by the Trial Court on 4th July 1995 in SCS No.611/1994 dismissing the suit on the ground that the Court had no jurisdiction suffers from various legal infirmities and is liable to be set aside for the following reasons :-
(a) The Trial Court has recorded a finding that in view of the provisions of Order XXIII Rule 3A of the Code, SCS No.611/1994 was not maintainable. The provisions of Rule 3A of Order XXIII of the Code read as under :-
"3-A. Bar to suit - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not
lawful." (Emphasis supplied)
The aforesaid provision indicates that no suit shall lie to set aside a decree on the ground that the compromise on the basis of which the decree is passed was not lawful. A plain reading of the aforesaid provision indicates that the earlier suit should have been disposed of by passing a decree in view of a compromise entered into between the parties. In such contingency, a subsequent suit raising a challenge that the compromise recorded in the earlier suit was not lawful would not lie. Undisputedly, in the present case the earlier suit being SCS No.268/1978 was pending when the Trial Court proceeded to decide the preliminary issue of jurisdiction in SCS No.611/1994 on 4th July 1995. SCS No.268/1978 came to be subsequently decided on 18th/20th December 1996. In fact, the Trial Court, in paragraphs 8 and 10 of the impugned order has recorded in clear terms that the earlier suit was pending when the issue of jurisdiction was being considered in the subsequent suit. It is thus clear from the record that there was no decree passed on 4th July, 1995 based on compromise as stated to be recorded below Exhibit-53 in SCS No.268/1978, when the Trial Court proceeded to hold that the subsequent suit was not maintainable in view of the provisions of Order XXIII Rule 3A of the Code. If the earlier suit itself was pending and no decree therein had been passed, there would be no question of the provisions of Rule 3A of Order XXIII of the Code being attracted. {Para 13}
IN THE HIGH COURT OF BOMBAY
First Appeal No. 92 of 1996,
Decided On: 25.01.2024
Moti Dinshaw Irani and Ors. Vs. Phiroze Aspandiar Irani and Ors.
Hon'ble Judges/Coram:
A.S. Chandurkar and Jitendra Jain, JJ.
Author: A.S. Chandurkar, J.
Citation: MANU/MH/0444/2024.
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