1. This appeal has been directed against a judgment and order of A. K Sarkar J. dated September 24, 1973,whereby, the learned Judge refused to record the terms of settlement, filed in suit No. 276 of 1971. The facts of the case may briefly be stated.
2. Two brothers Nawab Ali Hyder Khan and Ali Asgar Khan were the joint owners of premises No. 8/2, Palm Avenue, Calcutta. On or about March 15, 1958 they executed an agreement for sale of the said premises with one Sailaja Ranjan Chaki, respondent No. 6, on terms and conditions, set out in the agreement. Prior to the said date of agreement, Title Suit No. 284 of 1951 was pending in the Court of Subordinate Judge, Alipore, between one Indranath Nandy, the Mortgagee, and the said two brothers, the mortgagors in respect of a mortgage deed dated June 29, 1944. Ali Hyder Khan died intestate in 1963 leaving behind him Musst. Hossenara Begum, Ali Safdar Khan, Ali Sarwar Khan, Ali Dewar Khan and Mst. Sayedunessa Begum, the respondents Nos. 1 to 5. By a deed of assignment dated April 22, 1966, the said Sailaja Ranjan Chaki for a valuable consideration transferred absolutely to the appellant his right, title and interest under the said agreement for sale dated March 15, 1958 in respect of the said premises. The appellant, thereafter, instituted a suit in this Hon'ble Court being suit No. 1322-A of 1966 for specific performance of the said agreement for sale. The said suit was ultimately decreed on May 30, 1969 on compromise on the terms mentioned in paragraph 5 of the appellant's petition before the trial Judge. One of the terms of the decree in favour of the appellant is as follows:--
'The plaintiff (appellant) shall also be at liberty to release the original deed of conveyance in respect of the said premises dated June 29, 1944 in favour of the predecessors of the defendants Nos. 2 to 6 and defendant No. 7 in their joint names from Sri. B. N. Ghosh who is claiming a lien on the original deed of conveyance in respect of his dues amounting to Rs. 81,600/- against defendants Nos. 2 to 7 at the costs of defendants Nos. 2 to 7 and also out of the balance consideration money as stated in paragraph 6 (b) hereinabove retain all sum payable to or to be payable to the said B. N. Ghosh in order to make the plaintiff's title on the property, clear, absolute and perfect'.
3. Pursuant to the said compromise decree, the appellant released the subsisting charge on payment of Rupees 81,600/- to Mr. B. N. Ghosh and a deedof release was duly executed and registered on July 22, 1969. There was another term in the said compromise decree whereby the appellant is entitled to get credit for a sum of Rs. 65,000/-, being the expenses incurred, as set out in the agreement for sale dated March 15, 1958, in favour of Sailaja Ranjan Chaki. Thereafter, the appellant on or about June 30, 1969 called upon the respondents 1 to 5 and 7 to execute and register the conveyance of the said premises on receipt of the balance of the consideration money, alleged to be a sum of Rs. 48,400/-. But the vendors being respondents Nos. 1 to 5 and 7 refused to do the same. The appellant, thereafter, came to know that a mortgage decree in the said Title Suit No. 284 of 1951 was passed and in execution of the said decree the said premises were sold in auction at the instance of the mortgagee on March 15, 1952 for a sum of Rs, 2,01,000/-. The respondents Nos. 9, 10 and 11 became the auction purchasers. The date of confirmation of sale was fixed on April 16, 1962, But on April 16, 1962, the mortgagors, the said Ali Hyder Khan, since deceased, and the said Ali Asgar Khan, the respondent No. 7, deposited the entire decretal amount along with the execution cost and 5% of the bid money as compensation as required, under law for setting aside the said auction sale. In view of the said deposit, the learned Subordinate Judge was pleased to set aside the auction sale and the execution case was disposed of by his order dated April 16, 1962. The mortgagee decree-holder withdrew all his dues from the Court. The said auction purchasers, however, moved this Hon'ble Court in revision whereupon the order setting aside the auction sale was reversed and the matter was remanded back to the learned Subordinate Judge with a direction for reconsideration of the matter. On remand, the matter was considered by the learned Subordinate Judge on the very day the said Alipore Court received the records i.e. on December 2, 1968 and the said subordinate Judge confirmed the sale. On July 2, 1969, Mr. Anilendra Nath Mitra a Solicitor of this Hon'ble Court, withdrew the sum of Rs. 2,11,050/-being the sale proceeds of the said premises and costs etc. on the basis of a power executed by one Dhirendra Nath Acharya who is alleged to be holder of a Power of Attorney from respondents Nos. 1 to 5 and 7. The appellant, having come to know all the aforesaid facts, instituted a suit being Title Suit No. 60 of1970 in the Court of learned Subordinate Judge, Alipore against the heirs of late Ali Hyder Khan being respondents Nos. 1 to 5, against Ali Asgar Khan, respondent No. 7 and the said auction purchasers, respondents Nos. 9, 10 and 11 for a declaration that the appellant is the owner of the said premises under the decree passed by this Court on May 30, 1969. In the said suit No. 60 of 1970 the appellant made an application for an order restraining the auction purchasers from transferring the properties in any way or from taking possession thereof or for restraining the said Anilendra Nath Mitra from making any disbursement of the amount withdrawn by him. Thereafter, the learned Subordinate Judge allowed the appellant's prayer for Injunction against the auction purchasers but refused the prayer for temporary Injunction against Anilendra Nath Mitra. The auction purchasers preferred an appeal before the learned District Judge which was allowed on December 17, 1970. Against the said order the appellant moved an application in this Court in its civil revi-sional jurisdiction whereupon Amaresh Roy and A. K. De, JJ. were pleased to issue a Rule and granted an interim order of Injunction restraining the auction purchasers from transferring the said premises or from taking delivery of possession of the same. During the pendency of the said Civil Rule, the heirs of late Ali Hyder Khan, the respondents Nos. 1 to 5 instituted the present suit on June 23, 1971 against the appellant, Sailaja Ranjan Chaki, Ali Asgar Khan, Amar Kr. Roy a Solicitor of this Court and the auction purchasers for a declaration that the terms of settlement dated May 30, 1969 filed in the said Suit No. 1322-A of 1966 of this Hon'ble Court (Sm. Ajita Debi v. Sailaja Ranjan Chaki) are null and void and not binding on the heirs of Ali Hyder Khan and Ali Asgar Khan and as such the said consent decree should be set aside. In the meantime, the appellant was advised to settle the present suit and in fact the terms of settlement were arrived at between the appellant and the plaintiffs in the present suit i. e. heirs of late Ali Hyder Khan. Terms of settlement are as follows:
'1. The suit is withdrawn without liberty to file a fresh suit on the same cause of action.
2. Each party to bear and pay his own costs.
3. All ad interim orders are vacated.' The said terms of settlement were filedbefore Sarkar, J. The learned Judge by his judgment and order dated September 24, 1973 has refused to record the said terms of settlement. The present appeal has been filed against the said order.
4. Before the trial Court, three applications were filed in the present suit. In the first application filed on April 12, 1972 in order of time the appellant prayed for filing the terms of settlement as set out above. Pending the hearing of the said application two applications were made on Master's summons dated November 20, 1972 and November 28, 1972 whereby the auction purchasers respondents Nos. 9, 10 and 11 in the second application and the respondent Ali Asgar Khan in the third application respectively prayed for their transposition to the category of the plaintiffs and transposition of the plaintiffs to the category of defendants in the said suit. By consent all the three applications were heard one after the other. It was also agreed that the final order would be passed by the trial Court after hearing all the three applications. The learned Judge delivered one judgment whereby the appellant's application for filing the terms of settlement was dismissed and the respondents Nos. 9, 10 and 11 and respondent No. 7 were transposed to the category of the plaintiffs. Three appeals have been filed by the appellant against the said judgment and order of the learned Judge.
5. The short point to be decided in the present appeal is whether the learned Judge was right in refusing to record the terms of settlement.
6. A preliminary point has been taken challenging the maintainability of the appeal. Mr. P. K. Das, Counsel for Ali Asgar Khan, has submitted that leave was granted to prefer the present appeal on the usual undertaking that in the Paper Book they would set out the list of dates relating to the question of limitation. Even the other undertaking to file a certified copy of the order under appeal had also not been complied with. But subsequently leave was granted by this Court to file a supplementary Paper Book, including the said certified copy. Thereafter the said certified copy has been duly filed. But neither in the original Paper Book nor in the supplementary Paper Book, the list of dates relating to the question of limitation has at all been given. Mr. Das has, therefore, submitted that the appellant having failed to comply with the undertaking given tothis Court, this appeal should be dismissed. Reliance has been placed upon an unreported Bench decision of this Court by Lahiri and Bachawat JJ. in Ram Gopal Lachmi Narayan v. Bansidhar Ghanshyam Das delivered on April 5, 1960 in Appeal No. 36 of 1959 (Cal), Commissioner of Income-tax v. Santosh Debt Chamaria, 0065/1974 : AIR1974Cal295 and the unreported Judgment of myself and Chose J. in Appeal No 106 of 1974, (Prahlad Lal Saraf v. Nathmul Bhuwalka) delivered on January 21, 1975 (Cal), where it was held that if the appellant fails to comply with the conditions on the basis of which leave was granted to file the appeal, the appeal should be dismissed.
7. Mr. B. C. Dutt, Counsel for the appellant, has submitted that the facts in the above cases are distinguishable. Although, the list of dates relevant to the question of limitation has not been printed in the Paper Book, Mr. Dutt has contended that in the appeal there has been no breach of undertaking inasmuch as the appeal was placed in the list earlier than the normal time at the instance of the respondent and hearing of the appeal commenced on March 26, 1976, although the certified copy of the order was delivered by the department and filed by the appellant on March 23, 1976. We have, however, called for the records and have found the following dates:
1.Requisition for drawing up the order dated 24th September, 1973
28-9-732.Requisition for certified copy of the order dated 24th September, 197328-9-73.3.Order signed on9-3-76.4.Order filed on10-3-76.5.Folios for certified copy assessed by Court12-3-76.6.Stamp furnished on12-3-76.7.Date on which the copy is ready for delivery24-3-76.8.Date when delivery was taken24-3-76.9.Date of filing of certified copy of order24-3-76.
8. We are, therefore, satisfied that the appeal in fact was filed within the period of limitation and, in the facts of the case, the breach of undertaking in omitting to furnish the dates relevant for period of limitation in the Paper Book cannot be said to be voluntary or without reason.
9. Mr. Das has next contended that the respondent No. 3 Ali Safdar Khanhas died in December, 1974 and no substitution of his heirs having been made till the date of hearing, the appeal abated against all the respondents. Reliance has been placed by him on R. P. Gupta v. Murli prasad, : 1SCR63 , in support of his contention.
10. In reply to this contention, Mr. Dutt, prayed for an adjournment of the hearing of the appeal to enable his client to make a formal application for putting the heirs and legal representatives of Ali Safdar Khan on record. We have, however, granted the said prayer and adjourned the hearing. A formal application has been made on April 7, 1976 which has been disposed of by us by a separate judgment today. In our judgment, we have held that as Musst. Hossenara Begum is an heir of Ali Safdar Khan, deceased, as his mother, under the Mohammedan Law the estate of Ali Safdar Khan has already been represented in the appeal. Relying upon Sulaiman Sahib v. N. C. Mohd. Ismail Sahib, : 1SCR937 and Mahabir Prasad v. Jageram, : 3SCR301 , we have allowed to put the other heirs of Ali Safdar Khan on record in place of the deceased. For the reasons set out in the said judgment, we are of opinion that the appeal has not abated as submitted by Mr. Das and, as such, this contention of Mr. Das must also fail.
11. On merits Mr. Das has argued that the learned Judge has correctly rejected the appellant's prayer to file terms of settlement inasmuch as no such compromise or adjustment could be lawfully effected under Order XXIII, Rule 3 of the Code of Civil Procedure. Admittedly all the defendants did not sign the terms of settlement. Further no power of attorney has been filed by Amar K. Roy, since deceased, who has signed the said terms of settlement on behalf of the plaintiffs. As the compromise is unlawful it has rightly been rejected Reliance has been placed by him on Sadasukh Kabra v. Jugal Krishna Singh, (1957) 61 Cal WN 67 at p. 76. He has also contended that substantial nature of the terms of settlement as set out above is that the plaintiffs in this suit i.e. respondents Nos. 1 to 5 have made the application not to proceed with the suit. The appellant's said application to file the terms of settlement, however, has been made under Order XXIII, Rule 3 and not under Order XXIII, Rule 1. Even assuming that the said application before the trial Court was substantially an application under Order XXIII, Rule 1, the order of the learned Judge in the factsand circumstances of this case cannot be said to have been incorrectly made. Reference has been made to Hulas Rai Baij Nath v. Firm K. B. Baas & Co., : 3SCR886 where it has been held that the plaintiffs cannot be compelled to proceed with the suit by the Court under Order XXIII, Rule 1 of the Code.
12. In our view, where an application has been made under Order XXIII, Rule 1 the plaintiff is entitled to withdraw his suit and the defendants cannot be heard to oppose such prayer. But the said legal right of the plaintiffs to withdraw the suit is not unconditional or absolute. The Court can only exercise its jurisdiction in favour of the plaintiffs where the interests of the defendants are not adversely affected in any way if the plaintiffs are allowed to withdraw the suit. To Illustrate, in a partition suit by a sole plaintiff against defendants, the former cannot be allowed to withdraw the suit inasmuch as a defendant having a cause of action against such plaintiff, may be allowed to be transposed as plaintiff in the suit. Reliance may be Placed on Bhupendra Narayan Sinha v. Rajeshwar Prosad, 56 Ind App 228 at p. 229 = (AIR 1931 PC 162). The Judicial Committee in this case held that transposition of a party under Order 1, Rule 10 should be allowed where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings. Similarly, in a suit under Section 62 of the Code a plaintiff is not allowed to withdraw the suit if one of the defendants makes en application to proceed with the suit after being transposed as a plaintiff. Reliance may be placed upon AIR 1920 Mad 732. Similar situation may arise in a suit for accounts of a firm by a Partner. We are, therefore, satisfied that where an application simpliciter has been made under Order XXIII, Rule 1, the Court cannot compel the plaintiff to proceed with the suit and the defendants cannot be allowed to complain against such order. But where there is an affinity or identity of interests between the plaintiffs and one or more of the defendants, the plaintiffs cannot be allowed to withdraw the suit if an application on behalf of such defendants having an interest in the suit is made for their transposition to the category of plaintiffs and for transposition of the plaintiffs to the category of the defendants under Order 1, Rule 10.
13. In the facts and circumstances of the present case, late Ali Hyder Khanand Ali Asgar Khan were absolute owners of the said premises comprising more than 4 Bighas of land in a respectable locality in Calcutta. The respondent Ali Asgar Khan who was a defendant in the suit had identical interest in the said property with the interests of late Ali Hyder Khan or his heirs who happened to be the plaintiffs in this suit. If Ali Asgar is not allowed to be transposed, in such cases he would be compelled to file another suit against the heirs of Ali Hyder and the appellant which would encourage multiplicity of proceedings. It is quite possible that in a proper case if the suit is allowed to be withdrawn, the defendants' new suit might be barred by limitation. In the present case not only an application under Order XXIII, Rule 3 has been made but application for transposition of some of the defendants have been made under Order 1, Rule 10 so that the issues between the parties are finally determined. 14. It is the definite case of the appellant that one of the seven defendants, made the application to put the terms of settlement in Suit No. 276 of 1971 (Cal), (Mst. Hossenara Begum v. Sm. Ajita Debi) under Order XXIII, Rule 3. Relevant provisions of Order XXIII, Rule 3 read as follows :
'Provided it is proved to the satisfaction of the Court that the suit has been adjusted wholly or in part by any lawful agreement or compromise.....the Court shall order such agreement, compromise.....to be recorded andshall pass a decree in accordance therewith so far as it relates to the suit.' Defendant Smt. Aiita Debi made the application for recording the terms of settlement. The defendant No. 2 Sailaja Ranjan Chaki did not enter appearance. The defendant No. 3 Ali Asgar Khan is one of the defendants in the suit filed by Smt. Ajita Debi against Ali Hyder Khan, the predecessor-in-interests of the plaintiffs. Smt. Ajita Debi, the defendant No. 1 is supposed to have entered into an agreement with Musst. Hossenara Begum, Ali Safdar Khan, deceased, Ali Sarwar Khan, Ali Dewar Khan and Mst. Sayedunessa Begum. There is nothing to show that the suit has been adjusted wholly or in part between Smt. Ajita Debi and Ali Asgar Khan. It has been submitted by the Counsel for the appellant that Ali Asgar Khan is acting in collusion and conspiracy with Smt. Ajita Debi. If this submission is correct, then Ali Asgar Khan also should have been a party to the said terms of settlement. On the contrary,Smt. Ajita Debi has tried to file terms of settlement by excluding Ali Asgar Khan. It cannot be denied that Ali Asgar Khan and the heirs of Ali Hyder Khan have identical interests in the suit premises. It is true that respondents Nos. 5, 6 and 7 who happen to be the auction purchasers under a mortgage decree against Ali Hyder Khan and Ali Asgar Khan were not parties in the Suit No. 1322-A of 1966, that is, Ajita Debi's suit for specific performance of the agreement for sale against Ali Hyder Khan and Ali Asgar Khan; Counsel for the appellant is right in his submission that no relief has been claimed in the present Suit No. 276 of 1971 against respondents Nos. 5, 6 and 7. The fact remains that they have been impleaded res defendants by the respondents Nos. 1 to 5 who are the plaintiffs in the suit. The facts of the case also show that the respondents Nos. 5, 6 and 7 have purchased the suit premises for a sum of Rs. 2,01,000/- and paid the amount. Thus, the auction purchasers who have been impleaded in the said Suit No. 276 of 1971 are also interested in the suit premises. It is, thus, clear that the appellant who happens to be a lady instituted the said Suit No. 1322-A of 1966 for specific performance of the contract for sale and the said suit was compromised at her instance. The heirs of Ali Hyder Khan, deceased, filed the present suit for setting aside the decree for specific performance and impleaded Ali Asgar Khan as one of the defendants. Smt. Ajita Debi again persuaded the heirs of Ali Hyder Khan to withdraw the present suit and it is she who made the application for putting the terms of settlement excluding Ali Asgar Khan and the auction purchasers. Smt. Ajita Debi has therefore, failed to prove to the satisfaction of the Court that the said Suit No. 276 of 1971 has been adjusted wholly or in part against Ali Asgar Khan and the auction purchasers who are represented by different Counsel before the trial Court and this Court. The learned Judge is, therefore, right in refusing to file and record the terms of settlement by the order under appeal. Further, the suit premises No. 8/2, Palm Avenue, Calcutta, comprising of an area of about 4 Bighas 16 Cottahs together with two-storied building in a respectable locality is a very valuable property and there, are several litigations relating to the said property. Ali Asgar Khan and the auction purchasers are very much interested in the suit premises. We have been told that the Custodian of Enemy Property has in-stituted a suit against the heirs of Ali Hyder Khan, deceased, and Ali Asgar Khan for a declaration that the suit premises have been vested in the Union of India on the ground that heirs of Ali Hyder Khan, deceased, and Ali Asgar Khan are not Indian nationals. It is thus quite possible that all the parties have acted or are acting to dispose of the property at a nominal price.
15. There is another reason why the proposed compromise or adjustment cannot be allowed to be filed. The original terms of settlement have been examined by us and we have found that, Amar Kumar Roy, the respondent No. 8, has put his signature as solicitor for the respondents Nos. 1 to 5, but his power of attorney has not been filed in the suit. Thus we are satisfied that the purported terms of settlement are not based upon any lawful agreement or compromise within the meaning of Order XXIII, Rule 3. We, therefore hold that the learned Judge has not erred in refusing to record the terms of settlement.
16. In the premises, the appeal 19 dismissed but in the facts of this case parties will bear their respective costs.
S.K. Mukherjea, J.
17. I agree.