LAXMIBAI LAXMAN MEDHI Vs. KESARIMAL PREMCHAND PARMAR

JUDGEMENT

(1.) By this application, original petitioner seeks recall of the judgment and order dated 19th July, 2002 whereby the writ petition No.530 of 1985 was disposed of on the basis of the consent terms tendered by the parties, duly signed by the parties as well as their advocates. The petitioners want the writ petition to be heard on merits. In substance, the reason for this request, as stated in the application, is that, as per the new development plan applicable to Karjat Municipal Council, the petitioners will not be able to comply with the consent terms. In that, the permission for construction from the Municipal council is not forthcoming. That is also on account of the objections raised on behalf of the respondents and other tenants. In other words, it has become impossible for the petitioners to comply with the obligation stated in the consent terms. Indeed, the petitioners have also stated in the application that acting upon the obligation under the consent terms, the petitioners proceeded to demolish certain part of the premises which was occupied by them and they have also incurred financial liabilities. For all these reasons, according to the petitionersapplicants, the judgment and order passed by this court on 19th July, 2002 be recalled and the writ petition be restored to the file to the original number to be heard and decided on merits.

(2.) The petitioners would rely on section 53 and section 56 of the Indian Contract Act to buttress the argument that on account of the changed situation, the contract terms agreed upon by the petitioners, as recorded in the consent terms, have become voidable, if not void. Reliance is also placed on the decision of the Apex Court in the case of Banwari Lal v. Smt. Chando Devi (through L.R.) and another AIR 1993 SC 1139 to support the argument that the remedy of recall is permissible and indubitably one of the available remedies provided under the principles analogous to the provisions contained in Order 23 Rule 3 of Civil Procedure Code.

(3.) The respondents have filed detailed affidavit opposing the stand taken by the petitioners. The counsel for the respondents has raised preliminary objection regarding the maintainability of the application. According to the respondents, the application should be dismissed as the petitioners have not approached this court with clean hands. Besides, the present application is not maintainable being barred by principles of res judicata. According to the respondents, merely because of the clause provided under the consent terms of granting liberty to the parties to mention the matter, that cannot be the basis to entertain the application in the absence of any authority in the court to do so. The respondents have also stated in reply affidavit that the consent terms arrived at between the parties were lawfully entered into and accepted by the court. In such a case, the court has no jurisdiction to review the proceedings even though there are subsequent developments, as is alleged by the petitioners. This is the sum and substance of the objection taken on behalf of the respondents as preliminary contention. In so far as merits is concerned, the respondents on affidavit have asserted that inspite of the consent terms entered into by the parties as back as on 19th July, 2002, the petitioners did not take any steps to discharge their obligation of construction of the premises to be allotted to the respondents as alternate accommodation in lieu of the tenanted premises. In fact, the petitioners merely applied for permission only of repair and reconstruction and not for construction of new structure to accommodate the respondents. This stand is taken on the basis of the application which was submitted by the petitioners to the Municipal authority on 23rd May, 2003, as appended to the reply affidavit as Exhibit '1'. Respondents would assert that the petitioners have intentionally not placed this document on record and have suppressed the same from the court. Instead, the petitioners have asserted that they had applied to the Municipal authority for permission to construct a new structure to accommodate the respondents in terms of the consent terms, which plea is, palpably false to the knowledge of the petitioners. Counsel for the respondents has relied on three decisions to support his submission about the nonmaintainability of the present application. Reliance is placed on the decision reported in AIR 2001 SC 2569 in the case of Kewal Chand Mimani (D) by L.Rs. v. S.K. Sen and others. Reliance is also placed on the decision of the Apex Court in the case of State of Uttar Pradesh v. Shri Brahm Datta Sharma and another, reported in AIR 1987 SC 943. Reliance is placed on yet another decision of the Apex Court in the case of Byram Pestonji Gariwala v. Union Bank of India and others, reported in AIR 1991 SC 2234.