HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. versus STATE OF GUJARAT & ORS.

Citation: [2010] 10 S.C.R. 731 · Decided: 31-08-2010 · Supreme Court of India · Bench: R.V. RAVEENDRAN, H.L. GOKHALE · Disposal: Dismissed

Judgment (excerpt)

[2010] 10'S'.C.R. 731 
' 
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. 
A 
v. 
STATE OF GUJARAT & ORS. 
(Civil Appeal No. 7208 of'2010) 
AUGUST 31, 2010 
[RN,· RAVEENDRAN'AND H; L. GOKHALE; JJ;] 
Code of Civil Procedure, 1908: 
B 
Or 23, r.3 and 3-B - Compromise of a suit/appeal -
c 
Requirements to be. complied with - Explained - HELD: In 
the instant case, the compromise alleged was not between 
the parties to the suit/appeal, butwas between two groups of 
two communities - Further a decree can be made in terms 
of compromise only in so far as it relates to the parties to the 
0 
suit - Ultimately, first appellate court made an oi;der refusing 
to draw a decree in terms ofthe 'compromise' between non-
parties, as the appeal was disposed ofin pursuance of·the 
memo·of withdrawal. 
Or. 23, r. 3-B, Explanation -
"Representative suit" -
E 
Explained. 
s, 100.- Secondappealfiled. with application for leave· to 
file appeal by persons who were not parties to suit/first appeal 
- Maintainability of - In the instant case, the parties to the 
F 
suit/appeal had not entered into any compromise and the 
court had not passed a decree in terms of the compromise -
In fact, the court could not pass any decree in terms of the 
said compromise as it was not between the parties to the 
appeal - Request of the plaintiff/appellant was for withdrawal 
G 
of the first appeal and that request was granted and the appeal 
was dismissed as withdrawn -- When an appeal has been 
withdrawn by the persons who filed the appeal, it is not open 
to some other parties to file second appeal challenging the 
731 
H 
732 
SUPREME COURT REPORTS 
[2010] 10 S.C.R. 
A 
withdrawal of the first appeal on the ground that a 'compromise' 
was illegally entered - Neither 0. 23, r.3, nor 0. 23, r. 3-B was 
attracted. 
Plaintiff-respondent No. 6, namely, the Samast Sunni 
8 
Muslim Jamat Damnagar (Jamat), represented by its 
Secretary, filed a suit against respondent Nos. 1 to 5, inter 
a/ia, for declaration that it was the owner-in-possession 
of old Survey No. 248. The trial court though granted the 
other reliefs, rejected the claim of the plaintiff as regards 
Old Survey No. 248. In the first appeal filed by the plaintiff, 
C 
a consent 'pursis' signed by 4 Trustees of the Jamat and 
endorsed by the Sarpanch and the Secretary of the 
Grampanchayat was filed. Subsequently, a compromise 
agreement entered into between leaders of 'Muslim 
Samaj' and "Samast Hindu Samaj', was filed. The first 
D appellate court disposed of the appeal in terms of the 
consent 'pursis' and the agreement. The appellants, who 
were neither parties to the suit nor to the first appeal, but 
claimed to be the members of the Jamat, filed a second 
appeal before the High Court, with an application seeking 
E 
permission to file the appeal. The High Court held that the 
Jamat had not filed the suit in a representative capacity 
and, therefore, the application seeking leave to file the 
second appeal and the second appeal filed by the 
appellants were not maintainable. 
F 
Dismissing the appeal, the Court 
HELD: 1. The second appeal by the appellants was 
not maintainable and the refusal to grant leave to appeal 
was justified, though for reasons different from what has 
G been mentioned by the High Court. [para 17) [745-F-G] 
H 
2.1 A compromise of a suit is governed by Rule 3 of 
Order 23 of the Code of Civil Procedure, 1908. However, 
if the suit which is compromised, is a representative suit, 
• 
HUSSAINBHAI ALLARAKHBHAI DARIAYA & ORS. v. 
733 
STATE OF GUJARAT 
two additional requirements of Rule 38 will also have to 
A 
be complied with. They are: (i) compromise cannot be 
entered without the leave of the court expressly recorded 
in the proceedings; and (ii) before granting such leave, 
the court shall give notice to such persons as may appear 
to it to be interested in the suit. The Explanation to Rule 
B 
38 defines four categories of suits as "representative 
suits" for the purpose of the said rule : (a) suits u/s 91 or 
section 92 of the Code; (b) suits under Order 1 Rule 8 of 
the Code; (c) suits in which the manager of an undivided 
Hindu Family sues or is sued as representing the ·other c 
members of the family; and (d) suits in which the decree 
passed may bind any person who is not named as a party 
to the suit by virtue of the provisions of the Code of Civil 
Procedure or any other law for the time being in force. If 
a suit should answer the definition of a ·representative 
0 

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