No Bar Under Order XXIII Rule 3A CPC When Earlier Suit Pending Without Decree on Compromise: High Court Sets Aside Dismissal of Suit Challenging Partition

In a significant ruling, the Bombay High Court overturned a Trial Court’s decision which had dismissed a suit on the ground of lack of jurisdiction under Order XXIII Rule 3A of the Code of Civil Procedure. The appellants in the case (2024:BHC-AS:3858-DB) had challenged an alleged partition as illegal and void, which was based on a compromise in an earlier suit that was still pending.

The Division Bench, comprising Justices A.S. Chandurkar and Jitendra Jain, observed that “the subsequent suit was not barred under Order XXIII Rule 3A of the CPC when it was filed,” emphasizing that the earlier suit was pending without a decree based on compromise at the time of filing the subsequent suit.

The Court remarked, “A plain reading of the aforesaid provision indicates that the earlier suit should have been disposed of by passing a decree in view of a compromise entered into between the parties.” The judgment highlights that since no such decree existed when the subsequent suit was filed, the bar under Order XXIII Rule 3A CPC was not applicable.

Furthermore, the Court clarified that their observations were made solely for deciding the correctness and legality of the order passed on 4^th July 1995, and should not influence the pending appeal in the related matter. The Court restored the suit for adjudication on merits, allowing the First Appeal and leaving the parties to bear their own costs. Pending interim applications were also disposed of in line with this decision.

Date of Decision: 25 January 2024

MRS. MOTI DINSHAW IRANI & ANR. VS PHIROZE ASPANDIAR IRANI & ORS.