WP/286/2002 of CRUISELINE DATABASE PVT.LTD. Vs PRIME SHELTERS ESTATE DEV.and BUILDERS PVT LTD. on 5 December 2002

1. Prime Shelters EstateDevelopers & BuildersPvt. Ltd. a Companyincorporated under theIndian Companies Act,1956havingitsregistered officeat0-104 2nd floor, GomesCatao Complex, Mapusa,Bardez, Goa;

2. PrimeGoanResortsPvt.Ltd.a Companyincorporated under theIndian CompaniesAct1956havingitsregistered officeat0-104 2nd floor, GomesCatao Complex, Mapusa,Bardez, Goa;3. Mr.LucindoFaria,Director of Nos.1 and 2,above C/o Prime SheltersEstate Developers&Builders Pvt. Ltd. aCompanyincorporatedundertheIndianCompaniesAct1956having its registeredoffice at 0-104 2ndfloor,GomesCataoComplex Mapusa, Bardez,Goa;4. Mr.AgneloBraganza,Director of Nos. 1 &2,aboveC/oPrime

SheltersEstateDevelopers & BuildersPvt.Ltd.a Companyincorporated under theIndian CompaniesAct1956havingItsregistered officeat0-104 2nd floor, GomesCatao Complex Mapusa,Bardez, Goa;

5. Mr. Francis Braganza,Director of Nos.2 aboveC/oPrimeSheltersEstateDevelopersBuilders Pvt.Ltd.aCompanyincorporatedundertheIndianCompaniesAct1956having its registeredoffice at 0-104 2ndfloor,GomesCataoComplex Mapusa, Bardez,Goa;

6. Mr. Sylvester De Cunha,s/o Victor Lawrence DaCunha;

7. Mrs.Nisha S.DaCunha, w/o Sylvester DaCunha, both residing at4 Hill Crest, PeddeerRoad, Mumbai;

8. Resort Condominium IndiaPvt. Ltd. 208 BrigadeGardens, 19ChurchStreet, Bangalore;9. 1st AdditionalCivilJudge, Senior Divisionat Mapusa ....................... RESPONDENTS

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Mrs. A.A. Agni and Mrs. N. Narvenkar, Advocatesfor the Petitioner.

Mr. M.JS. Usgaonkar, Sr. Advocate, with Mr. V.Menezes, Advocate for the Respondents No.1 and 4.Mr. S.D. Lotlikar, Sr. Advocate with Mr.A.D.Bhobe, Advocate for the Respondents No.2 and 5.

Mr. S.G. Bhobe, Advocate for the Respondent No.3.

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CORAM : P.V. KAKADE,J.

DATED: DECEMBER 5, 2002.

ORALJUDGMENT

Heard Smt. Agni, the learned Counselfor the Petitioner, Shri Usgaonkar, the learnedCounsel for the Respondents No.1 and 4, ShriLotlikar, the learned Counsel for the RespondentsNo.2 and 5 and Shri Bhobe, the learned Counsel forthe Respondent No.3.

2. Rule, made returnable forthwith byconsent of the parties.

The Petitioner has moved this Courtseeking the quashing of the Order dated 25-9-2001passed by the Additional Civil Judge, SeniorDivision, Mapusa in Special Civil SuitNo.106/99/SR/I, challenging the Order to the effectthat the matter be posted for inquiry - if need beoral inquiry to ascertain whether the suit wascompromised on 11-12-2000.

3. It appears from the record that theApplications Exhibit 57 to Exhibit 71 were filed

and on 8-12-2000 the Plaintiff with the Advocateappeared in the matter for the Plaintiff and boththe sides Advocates sought adjournment to seewhether settlement was possible. Subsequently, anApplication came to be filed (Exhibit 57) on behalfof the Plaintiff and Advocates for Defendants No.1,2, 3 and 5, submitting that the parties had arrivedat a settlement at Bangalore for a meeting held on11-12-2000. The terms agreed upon were annexedthereto and as per the said terms the suit wasrequired to be disposed of. There was a prayerthat matter be fixed on 24-1-2001 and on that daythe Plaintiff’s Advocate retired from the suit.Thereafter, certain other Application was filed onbehalf of Defendants No.1 to 4 insisting that adecree be drawn in terms of the consent terms. Inshort, the issue involved before the learned trialJudge was whether there was a valid and legalcompromise as contemplated by the provisions ofOrder XXIII, Rule 3 of the Civil Procedure Code ornot, for which purpose the learned trial Judgeissued the impugned Order to hold an inquiry - ifneed be oral inquiry to ascertain whether the suitwas compromised as alleged.

Petitioner submitted that there could not be an independent inquiry and such direction to holdindependent inquiry, apart from the adjudicationof the suit, is illegal in law.

After hearing the learned Counsel forthe parties and having reference to the proviso toRule 3 of Order XXIII of the Civil Procedure Code,there is no doubt whatsoever that the question andissue regarding existence of valid and legalcompromise amongst the parties would be required tobe adjudicated as part and parcel of the suit andnot by independent inquiry.

Smt. Agni, the learned Counsel for thePetitioner, also submitted that such issue whichwould be raised by the trial Court under directionof this Court, would essentially be part and parcelof other issues involved and should be adjudicatedalong with other issues and not as preliminaryissue to be adjudicated in advance. In support ofher submission, she sought to put reliance on theApex Court ruling in the case of Star Constructionand Transport Co. and others v. The India CementsLtd. (2001 AIR SCW 742). I have criticallyperused the ratio of that judgment. However, in myconsidered view, the ratio thereof would not beapplicable to the present case, especially when it states that the objections regarding compromiseunder Order XXIII C.P.C. will have to be dealtwith appropriately on full trial. The term ’fulltrial’ does not contemplate adjudication along withother issues but full adjudication on thatparticular issue which would be raised as apreliminary issue.

5. Therefore, having considered allfacts and circumstances involved in the case, it ishereby directed that the learned trial Judge shallframe preliminary issue in the course of the suitregarding the question of legality, validity andexistence of the compromise alleged amongst theparties as contemplated by provisions of OrderXXIII, Rule 3 of Civil Procedure Code and the saidpreliminary issue shall be adjudicated initiallybefore other issues involved in the suit. Theparties are at liberty to amend their pleadings, ifrequired, in the course of the adjudication of thesuit.

6. Hence the Order dated 25thSeptember, 2001 passed by the Additional CivilJudge, Senior Division, Mapusa in Special CivilSuit No.106/99/SR/I is hereby set aside withdirections that the preliminary issue regarding the impugned question shall be raised and adjudicatedinitially before adjudication of other issuesinvolved.

6. With these directions, the Petitionstands disposed of with no order as to costs.

P.V. KAKADE,J.

ac.