MOTI DINSHAW IRANI Vs. PHIROZE ASPANDIAR IRANI

JUDGEMENT

(1.) This First Appeal, filed under Sec. 96 of the Code of Civil Procedure, 1908, (for short, "the Code"), raises a challenge to the dismissal of Special Civil Suit No.611 of 1994 on 4/7/1995. The present proceedings have a checkered history and hence it would be necessary to refer to relevant factual events that have bearing on the adjudication of the present proceedings.

(2.) SCS No.268/1978 came to be filed by Firoz Aspandiar Irani as plaintiff no.1 and Dinshaw Khikhushroo Irani as plaintiff no.2. The plaintiffs claim to be owners of the suit property by virtue of various sale deeds executed in their favour. They sought possession of the suit lands from defendant nos.1 and 2, namely, Shankar Ganpat Pingle and Kishan @ Krishnarao Rambhau Pingle. In the said suit, as filed on 12/7/1978, possession of the suit property was sought in favour of the plaintiffs along with defendant no.3-Mahmud M. Hashim Moledina. An alternate prayer was made that in case the defendant no.3 was not willing to join the plaintiffs in seeking the relief of getting actual possession of the suit properties from defendant nos.1 and 2, then an equitable partition be effected insofar as the share of the plaintiffs was concerned. During pendency of the said suit, the plaintiffs filed an application on 27/6/1986 below Exhibit-51 under the provisions of Order VI Rule 17 of the Code praying therein that the plaint be permitted to be amended with a view to correct the description of the suit lands. This application, however, was not pressed on 11/7/1986 and it was accordingly disposed of. On the same day, another application below Exhibit-52 was filed by the plaintiffs stating therein that the plaintiffs and the defendant no.3 desired to partition the properties that were the subject matter of the said suit. It appears that since the parties were not present, the said application came to be filed on the same day. Thereafter, on 3/7/1986, an application below Exhibit-53 came to be filed on behalf of the plaintiffs as well as defendant no.3 along with defendant nos.4 and 6, who had been subsequently impleaded as defendants. By the said application, the parties prayed that on the basis of the document of Power of Attorney, the compromise be recorded. On the same day, the Trial Court passed an order below Exhibit-53 stating therein that it had perused the relevant documents. Since the Power of Attorney Holder for the plaintiffs as well as defendant nos.3 to 6 had admitted the contents of the compromise petition, it was read and recorded. Thereafter, on 11/7/1986, the plaintiffs filed another application through their Power of Attorney Holder below Exhibit-54 seeking amendment of the plaint on the ground that land description numbers had undergone a change.

(3.) During pendency of SCS No.268/1978, the original plaintiff no.2 expired on 5/7/1992. His legal heirs were brought on record as plaintiff nos.2(a) and (b). They moved an application below Exhibit-151, praying therein that the compromise sought to be recorded by preferring application below Exhibit-53 was illegal, void and invalid on the ground that it was signed by the Power of Attorney Holder with a view to defraud plaintiff nos.2(a) and (b) of their share in the suit properties. It was also prayed that the Court may not pass any order on the application that was moved below Exhibit-142 under the provisions of order XXIII Rule 1 of the Code for recording the compromise. This application came to be rejected by the Trial Court on 7/10/1995. It may be stated that this order passed below Exhibit-151 is the subject matter of challenge in Writ Petition No.5621 of 1995 filed at the instance of plaintiff nos.2(a) and (b).