IBRAHIM GULAM RASULBHAI LOTIWALA Vs. FATEHMOMHHAD NOORMOHMMAD DHOLKAWALA

JUDGEMENT

(1.) RULE. Learned advocate Mr.Chirag Upadhyay waives service of notice of rule for and on behalf of the respondent Nos.6 and 7.

(2.) At the outset, learned advocate Mr.S.P.Majmudar appearing for the applicants has submitted that the trial Court by rejecting the application under the provision of Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short "the CPC") has fallen in error in recording the fact that the provision of Order XXIII Rule 3 A of the CPC will not apply in the suit, which has been instituted by the plaintiffs (respondent Nos.6 and 7). He has submitted that for the very same prayers, Regular Civil Suit No.105 of 2015 was instituted by the present applicants and the respondent Nos.6 and 7-the original plaintiffs of the present suit were also arraigned as party respondents along with other family members. He has submitted that during pendency of the said suit being Regular Civil Suit No.105 of 2015, a compromise was arrived at between all the parties and on behalf of the respondent Nos.6 and 7- original plaintiffs, their mother had signed. He has invited attention of this Court to the compromise dtd. 15/5/2015 at Exh.14 filed in Regular Civil Suit No.105 of 2015. It is submitted that accordingly, the compromise decree was drawn by resorting to the provision of Order XXIII of Rule 3A of CPC and the suit was disposed of on 15/5/2015. It is submitted by him that the respondent Nos.6 and 7-original plaintiffs thereafter, have instituted Regular Civil Suit No.30 of 2018 questioning validity of the compromise and compromise decree passed in Regular Civil Suit No.105 of 2015, without resorting to the provision of Order XXIII Rule 3A of the CPC. It is submitted that the suit is not maintainable in view of Bar stipulated under the provision of Order XXIII Rule 3A of the CPC.

(3.) Per contra, learned advocate Mr.Upadhyay appearing for the respondent Nos.6 and 7-original plaintiffs has submitted that the compromise decree itself is illegal since the same has been signed by the mother of the respondent Nos.6 and 7, who were minor at that time, which is in violation of the provision of Order XXII Rule 7 of the CPC. It is submitted that thus, there was no option left with the respondent Nos.6 and 7- original plaintiffs but to institute the suit seeking declaration for declaring the compromise as null and void, which has been arrived at in Regular Civil Suit No.105 of 2015. He has further submitted that in fact, it is the case of the respondent Nos.6 and 7 that they were not minors and signatures have been made by their mother behind their back.