VISHANKUMARI UDAYSINGH VARMA Vs. VIJAYSINGH RAJASINGH VARMA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 28th December 2015 passed by the learned Joint Civil Judge, Senior Division, Thane whereby Special Civil Suit No.432 of 2015 (for short 'the suit') has been dismissed as not maintainable in view of the bar as prescribed under Order XXIII Rule 3 A of the Code of Civil Procedure, 1908.

(2.) The contesting respondent in this appeal is defendant no.24 who filed an application in the suit, raising an objection to the maintainability of the suit in view of the provisions of Order XXIII Rule 3A of the Code of Civil Procedure 1908, as the appellants/plaintiffs was inter alia seeking a declaration that the compromise decree dated 22 July 2004 in Special Civil Suit No.230 of 1987 be set aside. This application was contested by the appellants/plaintiffs inter alia contending that the suit was maintainable inasmuch as though it was prayed that the compromise decree in Special Civil Suit No.230 of 1987 be set aside, however there were also other independent prayers in the plaint. Appellants also contended that the said compromise decree was obtained by fraud and thus on this count the suit was not barred under Order XXIII Rule 3A of the C.P.C.

(3.) Learned counsel for the appellants in assailing the impugned orders passed by the learned trial Judge would contend that the bar under Order XXIII rule 3A of the CPC to the maintainability of the suit was not applicable. Our attention is drawn to the prayers as made in the plaint to contend that reliefs as prayed in the plaint are not only for a declaration that the compromise and the consequent decree in Special Civil Suit No.230 of 1987 were illegal but, for other substantive reliefs. In this regard reliance is placed on prayer clause (g) of the plaint to point out that the appellants has prayed for a declaration in regard to entitlement to 50% of the mesne profit/gross sale proceeds earned by defendant nos.1 to 6,11/1,11/6,17 to 20 and 24 pursuant to consent terms dated 27 April, 2004 in Special Civil Suit No.230 of 1987 and the decree thereof dated 22 July, 2004, which is an independent relief. It is next submitted that the plaint contains allegations that the decree in Special Civil Suit No.230 of 1987 is obtained by fraud and thus in any case a separate suit was maintainable. In support of his submissions learned counsel for the appellants has placed reliance on the decision of the learned Single Judge of this Court in the case of Jethalal C.Thakkar & ors vs Lalbhai Hiralal Shah,1986 O BCI 52 and in case of Smt Anita vs Rambilas, 2003 AIR(AP) 32.