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2017 DIGILAW 46 (AP)

Ramgopal Patwari v. Bharatilal Patwari (Died)

2017-01-20

B.SIVA SANKARA RAO

body2017
ORDER : Dr. B. Siva Sankara Rao, J. The revision petitioner Ram Gopal Patwari S/o. Mohan Lal Patwari is no other than sole defendant of O.S.No.516 of 2006 on the file of XIV Additional Chief Judge, City Civil Court, Hyderabad. It is the suit filed against him by his brother Bharatlal Patwari since died represented by his LRs i.e., plaintiff Nos.2 to 7 viz., wife, 4 sons and married daughter. It is the suit for partition and separate possession of jointly purchased property in plot No.87/B, survey No.403 (old 120/12) covered by municipal Nos.8-2-120/115/14, Shaikpet Village, Jubliee Hills, Hyderabad under registered document No.71/81 dated 12.01.1981 admeasuring 1611 square yards bounded by North: land of Sri V. Narayan Das, West : open land plot No.86 and East and South road. The plaint averments show in nutshell that 1st plaintiff supra and sole defendant purchased the property supra for consideration on 12.01.1981 and rectification deed No.388/20.02.1981 of Sub Registrar Khairthabad, Hyderabad, rectify the extent of land since wrongly mentioned in the original document No.71/12-1-81 and after purchase while they are in joint peaceful possession and enjoyment, as plaintiff had to frequently for his business purposes stay at Tamilnadu and defendant used to maintain the accounts including profits in the affairs of the suit property and to settle the same including for amicable mutual partition and accounting of profits; the plaintiff despite demanding the defendant, for his half share in the property, defendant is prolonging on one pretext or the other with delaying tactics in dubious mode, plaintiff cause issued telephonic notice dated 22.09.2006 and also sent by registered post acknowledgement due on 27.09.2006, reiterating the demands that was received by the defendant and replied on 30.09.2006 with untenable grounds while admitting the joint purchase of the property under the document supra. The plaintiff cause issued rejoinder by clarification for said notice and reply on 10.10.2006, denying the reply for there is no family partition as alleged in the reply and to send any documents in proof if at all for which no documents or proof received. The plaintiff cause issued rejoinder by clarification for said notice and reply on 10.10.2006, denying the reply for there is no family partition as alleged in the reply and to send any documents in proof if at all for which no documents or proof received. It is since making a false claim and by setting up the exclusive rights by the defendant over the property including in the caveat lodged and since trying to demolish the structures and make constructions of the commercial complex including by covering the plot of his 2 sons, which he cannot, particularly in relation to the suit property which is still joint of defendant and 1st plaintiff for not entitled to exclusively deal with, the plaintiff with no option is constrained to file the suit from the cause of action for the suit reliefs by valuing as per the Sub Registrar basic value for the property mentioned Rs.8,10,25,000/- in seeking partition preliminary decree and separate possession after division by demarcation of the half share. 2. The written statement filed by the defendant against said suit claim is while denying the plaint averments with contentions of suit claim is barred by limitation and there was oral family partition in the year, 1982 in the lifetime of father of 1st plaintiff and defendant allotting the plaintiff's half share in favour of the defendant by making sole owner for entire suit property covered by registered sale deed No.71/12-1-81 and defendant obtained relaxation for construction of building vide G.O.Ms. No.260 (MA) dated 22.02.1983 and the municipal permission No.67/73 dated 11.01.1985 and the oral partition of 1982 reduced to writing on 21.11.1985 describing as release deed as per earlier oral partition and defendant having constructed house in the suit plot performed gruhapravesham on 28.11.1987 and the photos and videos evidence presence of plaintiff, the defendant's eldest son Sanjay Patwari's marriage was also performed in that constructed house in the suit plot on 15.02.1989 and plaintiff attended the same with family members also evidenced by photo and vediographs which all establish exclusion of plaintiff from any right or enjoyment over suit property for the past 12 years to the date of suit. It is also contended in the written statement that plaintiff has no cause of action and the suit claim is barred by law and it is not properly valued and Court fees not properly paid, the plaint is thereby liable to be rejected otherwise. It is also contended that as on the date of suit filed in 2006, the defendant already constructed commercial complex on the 2 plots of 2480 square yards which include the suit plot ad-measuring 1111 square yards out of 1611 square yards for remaining 500 square yards was acquired by the GHMC for road widening and the remaining 1369 square yards is the adjacent plot to the suit plot that belongs to the defendant's sons and Advocate Commissioner's report dated 18.12.2006 also substantiates the same of the building in the suit plot and the caveat also refers the same and the value made is as if open plot, whereas it is a commercial plot with constructions by the date of suit after demolishing old residential house in the year 2003 itself. It is also contested saying plaintiff is elder to the defendant being the 2 brothers and defendant purchased the suit plot out of his own earnings and got the registered sale deed in joint names bearing No.71/12-1-81 and in the lifetime of their father which was in the year, 1982 itself there was oral partition and the entire suit plot thereunder allotted to the defendant and thereby original title deed and rectification deed are in the custody of the defendant to the knowledge of plaintiff as link documents for the oral partition and defendant in the year 1983 obtained construction relaxation by G.O.Ms. No.260 supra on condition of leaving the land required for widening of Banjara Hills road No.2 and on 11.01.1985 permission for construction of the residential building No.67/73 dated 11.01.1985 obtained as per G.O. supra by payment of the amount exclusively by the defendant having surrendered 500 square yards of the land in the suit plot for road widening and having constructed the residential building No.1985-87 with own earnings and on 21.11.1985 it was reduced to writing of the oral partition by referring a release deed pursuant to the earlier oral partition supra and gruhapravesham was performed in November 1987 by the defendant therein and having lived for 15 years till 2003 with evidence of wealth tax assessment order 1986-87 and 1987-88 in 1989 for the schedule property showing in the defendant's account and in the year 1994 GHMC addressed notice for the property tax for the house in the suit site and there was also additional LPG cylinder with that address obtained by the defendant in the year, 1997 and water charges demanded from defendant for the house in the suit site in the year, 1997 and telephone and electricity bills also issued in the year, 1997 and the Secunderabad Club also issued bill with that address in the year, 1997 apart from letter received from Ramkarandas Jawalasahai, Delhi in the year 1997. Further in the year 2003, the defendant obtained permission to construct multistoried commercial complex in the remaining suit site and adjacent suit site of his sons and IT return of the year, 2004 for the assessment year 2005-06 shows the residential converted into commercial complex by development agreement with Mr. Zulfi Ravdjee by obtained bank loan; all establish the suit claim as false. 3. The additional written statement of the defendant to the amended plaint is also with same version saying the plaintiff's application in I.A. No.4018 of 2006 for interim relief that was obtained, the defendant filed CMA. No.1061 of 2006 in High Court where while setting aside the injunction orders it was observed that plaintiff is resident of Chennai and according to the defendant, plaintiff given up all his claims and defendant is in possession all along and also referred to the municipal permission, development agreement showing not entitled to injunction. No.1061 of 2006 in High Court where while setting aside the injunction orders it was observed that plaintiff is resident of Chennai and according to the defendant, plaintiff given up all his claims and defendant is in possession all along and also referred to the municipal permission, development agreement showing not entitled to injunction. The additional written statement further speaks that one of the other brothers of plaintiff and defendant late Sri Iswarlal Patwari and his family resides at Bombay. It is after the brothers separated in the year, 1989 by family settlement in sharing the properties for the 3 branches; plaintiff resides at Chennai, defendant at Hyderabad and the other brother's branch at Bombay. It is after the brothers separated in the year, 1989 by family settlement in sharing the properties for the 3 branches; plaintiff resides at Chennai, defendant at Hyderabad and the other brother's branch at Bombay. Said Iswarlal Patwari and his son Sushil Kumar Patwari also filed O.S.No.460 of 2007 on the file of III Additional Chief Judge, City Civil Court, Hyderabad for possession of suit property with other reliefs, which is part of the property that was given for development with this suit property to one Zulfi Ravdjee of Hyderabad supra who was also impleaded as one of the defendants to that suit and against the interim applications in I.A.Nos.3115 & 3849 of 2007, CMA.Nos.933 & 934 of 2007 were filed in High Court covered by common order dated 21.08.2008 against which said plaintiffs Iswarlal Patwari and his son Sushil Kumar Patwari of O.S.No.460 of 2007 filed civil appeal Nos.7181 & 7182 of 2010 in Supreme Court and on 28.04.2010 the Supreme Court by considering the disputes among the parties who are the brothers appointed Hon'ble Sri Justice M. Jagannadha Rao, Former Judge of Supreme Court to mediate the matter and try to resolve the disputes between the parties and plaintiffs are called as Chennai Group who participated in the mediation at free will and Iswarlal since died his LRs were brought on record in the civil appeals before the Supreme Court and during pendency of the appeals before the Supreme Court in relation to the suit lis of O.S.No.460 of 2007 and the present suit lis of O.S.No.516 of 2006 Justice Jagannadha Rao called on 3 branches and also the developer Zulfi for mediation and on 21.07.2010 a memo of understanding was executed between late Iswarlal's family branch, plaintiffs' family branch and the defendant's family and the same was signed by 1st plaintiff in the suit and Ravi Patwari one of his sons, for themselves and on behalf of other members of the family and in the mediation proceedings they represented through Sri N. Naveen Kumar Advocate Hyderabad in arriving a compromise/settlement of all disputes between the 3 branches, that Sri Justice Jagannadha Rao submitted his report to the Supreme Court and pursuant to it the Hon'ble Supreme Court on 30.08.2010 passed order accepting the MOU and the recommendations by the Hon'ble Mediator, and directed all parties to act as per the terms agreed before the Hon'ble Mediator in terms of the said MOU. Said MOU clause (5) which is signed on 25.07.2010 by the defendant, 1st plaintiff since died and Ravi Patwari and on behalf of Ganesh, Mahesh, Naresh, Kesav Patwari in the presence of their common advocate Sri Naveen Kumar where-under the defendant has to pay Rs.5 crores to plaintiff's branch and plaintiffs have to transfer the shares held by them in M/s. Telangana Spinning & Weaving Mills Limited which is now named as M/s. Starlite Global Enterprises (India) Limited in favour of the Hyderabad Branch along with affirmation of pre-existing title of the Hyderabad branch in respect of the suit schedule property. 4. The object of MOU is to bring peace and harmony between them and said settlement before the Hon'ble Mediator is of family settlement putting a logical end to all judicial disputes pending between the 3 branches which is binding on all. 4. The object of MOU is to bring peace and harmony between them and said settlement before the Hon'ble Mediator is of family settlement putting a logical end to all judicial disputes pending between the 3 branches which is binding on all. Subsequent to the execution of MOU dated 25.07.2010 supra, 1st plaintiff's son Ganesh Patwari raised objection regarding some of the terms of MOU and after due consultation between the members of the defendant's family and plaintiffs family MOU dated 25.07.2010 was recasted on 27.08.2011 before the Hon'ble Mediator Justice Jagannadha Rao that were also duly signed by 1st plaintiff and Ravi Patwari who is his son on behalf of their family in the presence of their counsel Sri Naveen Kumar and since became final to implement the conditions mentioned therein by the parties and as per which the Rs.5 crores payable by this defendant was reduced to Rs.4,87,60,875/- and as per the recasted MOU defendant's family shall have to deposit Rs.82,60,875/- in the escrow account by 30.12.2011 and as per which Rs.85,00,000/- deposited on 04.10.2011 with HDFC fund management and on 07.09.2011 an advertisement was made by Telangana Spinning & Weaving Miils (Starlite Global Enterprises (India) Limited) invited objections for issuance of duplicate share certificate and no objections issued for it and after complete formalities on 01.11.2011 and in February 2012 duplicate share certificates were due by the company, but for reasons best known plaintiffs family in defiance to the recasted MOU terms dated 27.08.2011 not submitted to the defendant the duplicate share certificates with transfer deed for payment of the stipulated amount and Ravi Patwari one of the sons of 1st plaintiff wrote 4 letters dated 12.12.2013 requesting the company to transfer certain shares mentioned in the letters which are part of the shares covered by the MOU for transfer to defendant and as the requests were not in proper form and not supported by proper documents that were denied by the company and informed to Ravi Patwari which are in clear violation of clause (9) of the recasted MOU to dishonor the commitment made in the recasted MOU. Later Ravi Patwari requested the company to return the shares and documents sent by him and the company duly returned the same to him under letters dated 14.06.2013, and Ravi Patwari and other plaintiffs did not resubmit said shares and other remaining shares for transfer in favour of the defendant pursuant to the recast MOU by not complied with till date though the defendant is always ready and willing to comply the terms of recast MOU which is final settlement and nothing but a practical decree of the Hon'ble Supreme Court to honour and act upon. In view of the subsequent developments taken place and the settlement reduced in writing before the Hon'ble Mediator Justice Jagannadha Rao, the parties have to comply with the same and the suit is liable to be dismissed as withdrawn. 5. The rejoinder filed by the plaintiff Nos.2 to 7 the LRs of the sole plaintiff since died, after said additional written statement of defendant, is by reiterating the plaint averments of admittedly the property purchased jointly by 1st plaintiff and defendant and to rely on the unregistered purportedly release deed by defendant said to have been executed by 1st plaintiff in respect of his half share for claim by defendant for entire suit property, the signature of release deed also denied by late 1st plaintiff that was also proved by opinion of handwriting expert of Truth Foundation on 04.05.2011 and the act of defendant in filing all the documents which are fabricated is fraud on Court to usurp the entire property. The defendant unauthorisedly proceeded to construct under joint venture multistoried building in the suit property without any registered relinquishment deed from 1st plaintiff even the loan availed from Canara Bank, Banjara Hills in the name of defendant and in construction approved plan from multistoried obtained, without notice to 1st plaintiff for having joint ownership, is a collusive and malafide to grab the suit property if possible. It is also contended that mediation by Hon'ble Justice Jagannadha Rao was ordered by Supreme Court to resolve the dispute which is subject matter of SLP.Nos.9493-9494 of 2008 in SLP.Nos.20876-77 of 2009 in CMA.No.934 of 2007 between Iswarlal Patwari (dead) By LRs and another v. Ram Gopal Patwari and Others, that is for that suit dispute and not relating to the present suit and the said mediation included the dispute between plaintiffs and defendant in respect of the suit property. However, the MOU entered on 25.07.2010, to which late 1st plaintiff and defendant were parties and according to Clause (5) of the MOU, defendant agreed to pay Rs.5 crores to plaintiffs and on fulfilment of such condition, the plaintiffs had agreed to withdraw the present suit O.S.No.516 of 2006 and it was agreed in Clause (6) of MOU that on defendant fulfilling the above condition, plaintiffs also to transfer shares held by them in the Spinning & Weaving Mills in favour of defendant, the amount that to be paid by the banker's cheque or DD which were to be deposited with Mediator to handover to plaintiffs. Similarly plaintiffs have to deposit all equity shares of spinning mills with all necessary transfer documents in favour of defendant with the mediator for handing over them to the defendant. As per clause (8) of the MOU in case of failure of the defendant to pay the agreed sum of Rs.5 crores, the suit would not be withdrawn by plaintiffs. Thereafter before said Hon'ble Mediator, there was another meeting of family members, some of them representing other absentees where reciprocal fulfilment of certain conditions by defendant and Mumbai Group of family members agreed by them under clauses 1 and 2 of MOU dated 25.07.2010 and the same were recorded. 6. However the obligation of defendant to pay Rs.5 crores to the plaintiffs in respect of the settlement of Hyderabad property dispute covered by the suit O.S.No.516 of 2006 was not fulfilled and subsequently Rs.5 crores payable by defendant to the plaintiffs was reduced to Rs.4,82,60,875/- and as per mediation proceedings dated 27.08.2011, an escrow account has to be opened on 30.09.2011, whereas in the additional written statement it is falsely stated to be 30.12.2011, which period also expired. Out of said amount, a sum of Rs.82,60,875/- to be deposited in escrow account by 30.09.2011 and plaintiffs agreed to handover to the defendant share certificates with transfer deeds of 2,31,764/- shares in the Telangana Spinning and Weaving Mills Limited held by the family members of the plaintiff excluding the shares held by Ganesh Patwari, Smt. Savita Patwari and the shares held by HUF of Ganesh Patwari and Sons and shares held by Lata Agarwal and the balance sum of Rs.4 crores payable by the defendant to the plaintiffs was agreed to be paid as consideration by the date of transfer to be executed by 1st plaintiff in respect of half share in suit property by 30.09.2011. The defendant never fulfilled his obligations as per MOU and as per the MOU proceedings despite requested by deceased-1st plaintiff in his lifetime for early settlement and having not paid the amount even after lapse of 4 years, the 1st plaintiff by letter dated 14.10.2012 sought for early settlement of the payment regarding Hyderabad property to amicably resolve the dispute. From 01.12.2012 the 1st plaintiff's health was deteriorated due to lung cancer from which unable to correspond with defendant for settlement and 5th plaintiff Ravi Patwari by letter dated 03.04.2013 brought the same to the Hon'ble Mediator that the defendant failed to deposit the amount in the Escrow account as agreed in MOU and not paid the amount of Rs.4 crores for the transfer of 1st plaintiff's share in the suit property and there is no reply for that either and the failure on part of the defendant to fulfil these conditions within the stipulated time or thereafter would definitely render the settlement arrived before the Hon'ble Mediator as inoperative and not binding on plaintiffs as per clauses 8 & 9 of MOU and in view of the same it is the failure by the defendant to pay amounts agreed upon and the contra allegations in the written statements as if there is noncompliance by the plaintiffs are baseless. Transfer of shares of Spinning and Weaving mills and payment of amount for transfer of rights in Hyderabad property were 2 distinct issues and thus irrespective of the settlement of issue relating to transfer of shares the amount should have been paid having wilfully evaded to pay agreed amounts for settlement of Hyderabad property issue by the defendant, the defendant cannot set out any unwarranted conditions. It is the rejoinder dated 09.06.2015. It is in that course in I.A.No.255 of 2015 in April 2015 the impugned order dated 20.06.2016 was passed which is the subject matter of revision. 7. The affidavit petition averments filed under Order 23, Rule 3 and Section 151 CPC is to record the so called compromise of the dispute in terms of the recast MOU dated 27.08.2011 and to pass a compromise decree and such other just orders with averments contain in written statement and additional written statement supra, thus no way requires repetition but for to say from the affidavit Para 7 onwards in terms of said MOU Hyderabad branch shall deposit Rs.82,60,875/- in escrow account on or before 30.12.2011 (30.09.2011 sic.) and the Chennai Branch has to submit applications to the Spinning and Weaving mills for issuance of the duplicate certificate since claimed by Chennai branch originals were misplaced and not traced and it is agreed that Chennai branch shall withdraw the suit while confirming the claim of pre-existence title of Hyderabad branch in the suit schedule property by executing registered transfer deed as suit properties is part of the property covered by registered development agreement between defendant and Zulfi Ravdjee. Pursuant to the recast MOU dated 27.08.2011 the Chennai branch submitted documents for issuance of duplicate certificates in Spinning and Weaving Mills and advertisement made by the company on 07.09.2011 for any objection to issue duplicate share certificate. On 04.10.2011, defendant deposited Rs.85,00,000/- with HDFC fund management. Pursuant to the recast MOU dated 27.08.2011 the Chennai branch submitted documents for issuance of duplicate certificates in Spinning and Weaving Mills and advertisement made by the company on 07.09.2011 for any objection to issue duplicate share certificate. On 04.10.2011, defendant deposited Rs.85,00,000/- with HDFC fund management. On 01.11.2011 and in February 2012 duplicate share certificates were issued by the company, however Chennai branch in defiance of the terms of MOU dated 27.08.2011 not submitted duplicate share certificates with transfer deeds for payment of the stipulated amount under MOU and Ravi Patwari one of the sons of late 1st plaintiff wrote four letters dated 12.12.2013 requesting the company to transfer the shares in his name which are part of the shares covered by MOU for transfer to defendant and as the request is not proper, company could not comply with that request and so informed which is a clear violation of the Ravi Patwari of Chennai branch of revised MOU in its dishonouring and later even having got back the shares from the request to return they did not resubmit those and other remaining shares for transfer in favour of the defendant pursuant to the revised MOU. Aggrieved by orders in I.A.No.2725 of 2009 in the suit, the defendant preferred CRP.No.2973 of 2010 to implead the developer as one of the parties to suit and meantime Bharatlal Patwari died on 06.04.2013, his legal representatives were added and the legal heirs of 1st plaintiff are also necessary parties to be brought on record to the suit and CRP.No.2973 of 2010 was disposed of on 27.03.2014 by remitting the matter to the lower Court to issue notice to the proposed party and to dispose of and it is still to be disposed of. The defendant is always ready and willing to pursue to the revised MOU but for the plaintiffs and thereby to order to record the compromise in terms of the revised MOU by passing compromise decree. 8. The counter filed in opposing the petition by the plaintiffs as respondents is with selfsame averments of plaint and rejoinder supra that also no way require repetition. 8. The counter filed in opposing the petition by the plaintiffs as respondents is with selfsame averments of plaint and rejoinder supra that also no way require repetition. It is pursuant to which by the impugned order of the lower Court particularly from Para 5 onwards referring to the documents marked on behalf of the defendant as Exs.P1 to P13 viz., supreme Court order in civil appeal Nos.7181-82 of 2010, copy of MOU, copy of revised MOU, copy of account statement of HDFC, copy of letter issued by defendant to 1st plaintiff, letter issued by Ravi Patwari (revision respondent No.6) to the Spinning Mills, letter of defendant to Ravi Patwari, letter of Ravi Patwari to Spinning Mills and letter issued by the defendant to Ravi Patwari, letter of Mahesh Kumar Patwari to Spinning Mills, letter of defendant to Mahesh Kumar Patwari, letter issued by Mahesh Patwari to Spinning Mills and letter of defendant to Mahesh Kumar Patwari. 9. It is referring to those and from the hearing and by reproducing Clauses 5 to 8 of Ex.P2 original MOU dated 25.07.2010 and Clause (11) of Ex.P3 revised MOU dated 27.08.2011, it is observed by the lower Court that Ex.P3 revised MOU filed by defendant does not contain signatures of particular plaintiffs except plaintiff Nos.1 and 6. The decision placed reliance on the expression of the Apex Court in Gurupreet Singh v. Chatur Bhee Goel 1988 (1) SCJ 158 holds that requirement of compromise should be reduced to writing in the form of instrument signed by parties applicable and there is no terms of compromise reduced to writing in the present suit and Ex.P3 is the obligation on the part of the plaintiffs to withdraw the suit after fulfilment of the terms pursuant to the Ex.P3-MOU and after death of 1st plaintiff, other plaintiffs did not file any memo to withdraw the suit as the settlement as per the understanding of revised MOU. Ex.P3 which did not contain signatures of other than plaintiff Nos.1 and 3 and Ex.P3 cannot be treated as compromise in the suit to record, thereby the petition is not maintainable in dismissing the same. 10. Ex.P3 which did not contain signatures of other than plaintiff Nos.1 and 3 and Ex.P3 cannot be treated as compromise in the suit to record, thereby the petition is not maintainable in dismissing the same. 10. The contentions in the grounds of revision impugning the same are that the trial Court should have honoured the mediation made by Hon'ble Sri Justice Jagannadha Rao which is reduced to writing by revised MOU after modifying the previous MOU and signed by 1st plaintiff and 6th plaintiff representing their family along with their advocate Sri Naveen Kumar and the proceedings of revised MOU (Ex.P3) are undisputed for the same is with consent of the parties in issue and the observation of the Court below that the document is not signed by all, thereby not correct for 1st plaintiff signed who filed the suit to bind on other plaintiffs also and Court failed to understand the scope of Order 23, Rule 3 CPC and failed to consider the admissions of plaintiffs mentioned in their rejoinder particularly Para 12, thereby set aside the impugned order and allow the revision. 11. The additional affidavit of the revision petitioner/defendant is by saying further that the suit dispute is settled under the mediation by Hon'ble Sri Justice Jagannadha Rao as per the revised MOU (Ex.P3) signed by defendant and his advocate and 1st plaintiff and his advocate and the Mediator also signed and the said agreement is a compromise to implement and as per Clause (6) defendant to deposit Rs.82,60,875/- in an escrow account by 30.09.2011 and on 04.10.2011 defendant deposited Rs.85,00,000/- and communicated to plaintiffs and as per Clause (7) of revised MOU plaintiffs obtained duplicate share certificates from the company and as per clause (8) plaintiffs shall handover the share certificates with transfer deed to defendant and shall take the amount proportionately and they have not handed over the share certificates with transfer deeds and amount of Rs.82,60,875/- deposited by the defendant on 28.12.2015 by demand draft in the lower Court and after dismissal of the petition, the lower Court returned the demand drafts and the defendant/revision petitioner is ready and willing to perform the terms as per the revised MOU including to deposit the amount. 12. Heard both sides at length in support of the respective rival pleadings and perused the entire material on record in deciding the revision lis. 13. 12. Heard both sides at length in support of the respective rival pleadings and perused the entire material on record in deciding the revision lis. 13. Undisputedly among the 3 branches consist of Chennai group the 1st plaintiff since died and plaintiff Nos.2 to 7 added in present suit O.S.No.516 of 2006 and the sole defendant is Hyderabad branch and their other brother Iswarlal Patwari of Mumbai group no other than plaintiff in another suit O.S.No.460 of 2007 filed against the present defendant and the builder with the present defendant as per the development agreement for the commercial complex under construction or constructed as the case may be, which is covered by the plaint schedule in the present suit O.S.No.516 of 2006 of 1611 square yards out of which 500 square yards said to have been acquired for road widening and the suit lis in O.S.No.460 of 2007 which is abutting to it and the claim of the defendant is suit property exclusively belongs to him though purchased in the name of 1st plaintiff and of himself jointly in 1981 from the oral family arrangement or partition later reduced to writing in 1982 referring as relinquishment where 1st plaintiff relinquished his rights and defendant got right by adverse possession even otherwise from then having independently constructed residential house and resided therein for 15 years from 1987 to 2003 and thereafter with approved plan constructed the commercial complex same is also the claim in other suit for the site standing in the name of the sons of the defendant, the plaintiff therein claimed as joint property liable for partition. 14. It is in fact out of the suit lis in O.S.No.460 of 2007 filed by Iswarlal Patwari against the defendant Hyderabad group of Ram Gopal Patwari against the interlocutory orders of trial Court, impugning the miscellaneous appeal orders of High Court, the matters reached before the Supreme Court and where there was a suggestion for mediation by directing parties to approach Hon'ble Justice M. Jagannadha Rao whom the Apex Court appointed as Mediator. The subject matter of the present lis is between the 1st plaintiff of Chennai group and the defendant of Hyderabad group was not there for mediation, but for the scope of mediation is enlarged from the participation in settlement of disputes between the 3 branches of the family in relation to Hyderabad properties from the respective rival claims in the 2 suits. It is to say the parties themselves submitted to the private settlement through mediation as one of the alternative mechanism other than trial before regular court even of the pending matters within the scope of Section 89 CPC and or otherwise under the Arbitration and Conciliation Act, 1996. There is no arbitration but for mediation or conciliation as the case may be, to say there is no any arbitral award from the mediators report. 15. The only thing now to consider of MOU dated 25.07.2010 (Ex.P2) and the revised MOU dated 27.08.2011 is within the meaning of the terms of compromise to construe under Order 23 CPC to record the same as a compromise and pass a compromise decree that is sought for by the defendant of the present suit O.S.No.516 of 2006 to dispose of the suit lis, if not whether the impugned order of the lower Court, saying the petition as filed under Order 23 CPC is not maintainable, is liable to be interfered and if so with what result. 16. Order 23, Rule 1 CPC speaks withdrawal of suits and abandonment of part of claim. The plaintiffs did not so choose. They did not seek to invoke the same, leave about the transposition of parties under Order 23, Rule 1 CPC is not even a case herein and this is not even a case under Order 23, Rule 2 for any fresh suit to be instituted with permission if granted under 1st proceeding and the effect of limitation. 17. Now coming to Order 23, Rule 3 CPC of compromise of suit the same is reproduced hereunder for clarity sake, which reads : "3. 17. Now coming to Order 23, Rule 3 CPC of compromise of suit the same is reproduced hereunder for clarity sake, which reads : "3. Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit :- Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation: An agreement or compromise which is void or avoidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule." 18. From its wording, if it is proved to the satisfaction of the Court of suit has been adjusted wholly or in part by written agreement or written compromise duly signed, the Court shall record such agreement or compromise and pass a decree in accordance there with between the parties, including outside the scope of the subject matter of the suit. It further speaks, where it is proved from defendant satisfies the plaintiff in respect of whole or part of the subject matter of the suit, the Court shall record the satisfaction and pass such decree supra. Thus the agreement lawfully entered in adjusting the suit claim if it is proved can be recorded leave about the compromise entered and the terms of compromise produced and if the Court satisfy from the presence of parties then also to record to pass decree so far as agreements are concerned, that it must be proved if it is in dispute only if it is duly satisfied of the said agreement is lawfully entered the Court can record. Here importantly the MOU and revised MOU are of 25.07.2010 and 27.08.2011 in the suit O.S.No.516 of 2006 including covering the suit dispute and the present application filed is in April 2015 nearly 4 years thereafter and not immediately referring to Order 23, Rule 3 CPC. The other aspect covered by the provision as per its proviso is where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question. Here the dispute is that, defendant failed to comply with the terms of the MOU by payment of the amount of Rs.5 crores modified to Rs.4,82,60,875/- and it is the contest of plaintiffs of the transfer of shares and withdrawal of the suit on payment of the amount thereunder are independent. The defendant did not deposit the entire amount so far and not even deposited in the escrow account and produced before the Mediator and not even produced before the lower Court such proof and not even filed the application immediately after 27.08.2011 though to be complied by 30.09.2011 undisputedly, if at all plaintiffs non-cooperative is there. 19. Here it is not a case to pass a decree on admission under Order 12, Rule 6 CPC invoking even of Order 8 Rules 3 to 5 CPC and Sections 17 to 23 and 58 of the Evidence Act. The counsel for the revision petitioner/defendant placed reliance on the expression of the Apex Court in Pushpa Devi Bhagat (dead) through LR Smt. Sadhna Rai v. Rajinder Singh and Others (2006) 5 SCC 566 , where it is observed no doubt in a rent control matter on the scope of Order 23, Rule 3 CPC that, it runs in 2 parts of nature of consent decree passed under other part viz., 1st part pertains to adjustment of suits in whole or in part and 2nd part pertains to satisfaction of suit in whole or in part. Where matter falls under 1st part there is compromise or compromises agreed to be performed or executed and that can be enforced by levying execution. Whereas where the matter falls under 2nd part, what is required is completed action or settlement out of Court putting an end to the dispute and resultant decree recording the satisfaction capable of being enforcing by levying execution. Whereas where the matter falls under 2nd part, what is required is completed action or settlement out of Court putting an end to the dispute and resultant decree recording the satisfaction capable of being enforcing by levying execution. If the parties in person or duly authorised attorney holder or pleader if complied with signed by parties and so far as lawful agreement or compromise in writing concerned, statements of parties or their counsel made in Court and recorded on oath and however accepted by the parties or counsel as correct and signed by the parties or their counsel is a valid compromise in writing and signed by parties under the provision. So far as decree on admission concerned, if the defendant admitted the claim of plaintiff the decree can be passed under Order 12, Rule 6 CPC from the admission in the pleadings or any settlement outside the Court even. The principle laid down in Pushpa Devi supra is reiterated by subsequent expression of the Apex Court in Civil Appeal Nos.2050-2053 of 2013 in Mahalaxmi Cooperative Housing Society Limited v. Ashabhai Atmaram Patel (D) Th.Lrs and Others particularly from Paras 36 referring to the scope of Order 23 Rules 1 to 3 by its reproduction of its scope and from Para 36 reproducing what is held by Pushpa Devi supra saying from Para 40 that the proviso to Rule 3 Order 23 CPC supra inserted by the amended Act 1976 enjoins the Court to decide the question where one party alleges that the matter is adjusted by agreement or compromise but the other party denies the allegation. The Court is therefore called upon to decide the lis one way or the other. 20. The Court is therefore called upon to decide the lis one way or the other. 20. The counsel also placed reliance upon Karam Kapahi and Others v. Lal Chand Public Charitable Trust and Another (2010) 4 SCC 753 which is with reference to Order 12, Rule 6 CPC, Order 6 Rules 1 and 7 and Order 12, Rule 1 and the relevant scope of the provisions with reference to Sections 17, 23, 31, 58 and 115 of Evidence Act, and Section 114 of the Transfer of Property Act and the Doctrine of Election in saying the use of words, admissions contained in pleading or otherwise is wide enough of its scope and the Order 12, Rule 6 CPC gives plaintiff a right to speedy judgment as party, on admission of another, can press for judgment as a matter of legal right, however Court always retains its discretion in matter of pronouncement of judgment, for Order 12, Rule 6 CPC is wider than Order 12, Rule 1 as Order 12, Rule 1 is limited to admission by pleadings or otherwise in writing whereas Rule 6 uses the expression 'or otherwise' to say either in the pleadings or otherwise and whether oral or in writing and therefrom an enabling, discretionary and permissive provision from the use of word may in exercise of discretion by Court as per facts, for not a mandatory nor peremptory to compel by parties. 21. The other decision placed reliance is also of the Apex Court in SLP. Nos. 21108-21110 of 2007 and batch dated 21.04.2010 between Shanti Budhiya Vesta Patel and Others v. Nirmala Jayprakash Tiwari and Others. It is a lis in relation to set aside the consent decree application filed on the grounds of respondents failed to perform their obligation as per the consent terms in payment of Rs.1.15 crores, the High Court dismissed the application. It was held from Para 29 that the case of the appellants was that there was no due compliance with the provisions of Order 23, Rule 3 and the responsibility of the Court is to see that consent terms have arrived at satisfaction of all the parties and injustice is not caused to any party. It was held from Para 29 that the case of the appellants was that there was no due compliance with the provisions of Order 23, Rule 3 and the responsibility of the Court is to see that consent terms have arrived at satisfaction of all the parties and injustice is not caused to any party. In fact a compromise signed by the counsel or GPA holder or a party is binding, the burden to prove that terms is arrived at under Order 23, Rule 3 CPC is tainted by fraud or coercion lies on the party alleges the same. It was observed that the respondent in the counter affidavit filed brought for declaring consent terms to be cancelled on the ground of those rendered infructuous due to failure of other party to perform his obligations. Money game is being played since the stakes are high each party is trying to draw maximum advantage. 22. In relation to the admissions, the learned counsel for the revision petitioner placed reliance on Para 15(g) clause (1) to (7) which read in Cheedella Radhakrishna Sharma and Others v. Radhakrishnamurthy and Others LAWS (APH) 2014 (9) 176 reads under : 15(g). Coming to the admissions - Admissions are relevant and must be read as a whole and cannot be split up to rely upon a part of statement to the advantage to ignore the other part which is to the disadvantage of same party. The word 'admission' has been defined under Section 17 of the Indian Evidence Act as follows :- "An admission is a statement, oral or documentary or contained in electric form, which suggests any inferences as to any fact in issue or relevance fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned". The word 'admission' has been defined under Section 17 of the Indian Evidence Act as follows :- "An admission is a statement, oral or documentary or contained in electric form, which suggests any inferences as to any fact in issue or relevance fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned". 15(g)(i) In Wigmore's Evidence, 1095 Ed., Page 1226, the word 'admission' has been defined as follows :- An "Admission" in the correct sense is a formal act, done in the course of judicial proceedings, which waives or dispenses with the production of evidence by conceding for the purposes of litigation that the proposition of fact claimed by the opponent is true" 15(g)(ii) Order 8 Rules 3-5 of C.P.C. envisage that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. There is no other provision in C.P.C. imposing such a condition on the plaintiff to deny the allegations of fact made by the defendants in their written statement. 15(g)(iii) Order 20, Rule 6 of C.P.C. envisages passing of decree on admissions to the extent admitted, to put the parties to trial for rest of the lis, if any. 15(g)(iv) Thus, admission means admitting the fact which is asserted by other party. When a party pleads that there is a partition and when the other side disputes the same, it becomes a disputed fact and when it is a disputed fact, the Court has to give a finding on the said disputed fact. Of course, at a subsequent stage, a party cannot be permitted to take a contra stand to the earlier stand taken by said party. However, the admissions can be explained away and retracted. Thus, in placing reliance on admissions, conduct of the parties and all subsequent events have to be conjointly examined and reasonable conclusions basing on the probabilities of the case have to be drawn to decide how far to rely in appreciation of evidence, being relevant and otherwise conclusive. However, the admissions can be explained away and retracted. Thus, in placing reliance on admissions, conduct of the parties and all subsequent events have to be conjointly examined and reasonable conclusions basing on the probabilities of the case have to be drawn to decide how far to rely in appreciation of evidence, being relevant and otherwise conclusive. 15(g)(v) It is well laid down in Karuna Kapali v. M/s. Lalchand PC Trust 2010 (3) Scale 569 in dealing with relevancy and importance of pleadings and binding nature on facts admitted need not be proved under Section 58 read with Section 17 and 21 of the Indian Evidence Act r/w. Order 8 Rules 3-5 CPC and Order 12, Rule 6 CPC. See also - Sajjana Granites v. M.S. Rao 2002 (1) ALT 466 (DB) at para 34 15(g)(vi) In P.S. Sairam and another v. P.S. Rama Rao Pisey AIR 2004 SC 1619 & Hardeo Rai v. Shakuntala Devi AIR 2008 SC 2489 - it was held that an admission made by a person cannot be split up for only part of it can be used against the maker. In fact, the correct meaning of the word 'admission' appears to be when a party in proceedings has made a statement or taken a stand and when the other side has admitted the same as true, the same amounts to admission. Thus, even when a party admits the plea or the stand of a party in earlier proceedings, the same also can be treated as an admission. 15(g)(vii) Further in Bharat Singh v. Mst. Bhagiradhi AIR 1966 SC 405 at para 7 at Para 19-it was held by the three judge Bench of the Apex Court on admissions and its relevancy that, admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17 to 21 of the Indian Evidence Act, though party is not confronted with the statement and in such case the weight to be attached to it is a different matter. It is to say their evidentiary value is very weak and as such those are not conclusive proof of the matters admitted. It is to say their evidentiary value is very weak and as such those are not conclusive proof of the matters admitted. It was held that, admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting witness u/Sec.145 of Indian Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted, while previous statement used to contradict the witness does not become substantive evidence and merely serves purpose of throwing doubt on the veracity of the witness. Thus, what weight is to be attached to an admission made by a party is a matter different from its use as relevant and admissible evidence. 23. The counsel also placed reliance on the expression in Smt. Mareddy Seetharathnam v. Siruuri Venkatarama Raju and others in CRP.No.1751 of 2016 and batch dated 17.10.2016 by placing reliance on Paras 6(e), 6(e)(i) to 6(e)(ix) at Page Nos.21 to 23. The other decision placed reliance is Sneha Gupta v. Devi Swaroop 2009 (6) SCC 194 . No doubt from the above legal position an admission is unless explained away is binding on the party who got no right to withdraw the admissions in pleadings and for that matter even admission outside the Court also binding on a party unless explained away to act upon leave about the evidentiary value of the admission depends upon facts and circumstances of each case as party of appreciation of evidence of the lis on hand in question to determine by the Court therein. Once as held in Pushpa Devi and Mahalaxmi supra of the proviso to Order 23, Rule 1 CPC. 24. Here coming to the facts with reference to proviso to Order 23, Rule 3 supra, there is no dispute about the MOU and the supplemental MOU (Exs.P2 and P3) entered by the parties. There is also no dispute as to the stipulation for compliance by 30.09.2011. 24. Here coming to the facts with reference to proviso to Order 23, Rule 3 supra, there is no dispute about the MOU and the supplemental MOU (Exs.P2 and P3) entered by the parties. There is also no dispute as to the stipulation for compliance by 30.09.2011. Once such is the case, the defendant did not deposit so far as withdrawal of the suit concerned the amount to be deposited that is the contention of plaintiffs in saying there is change in the circumstances by non-compliance, increase in value of lands and whether the transfer of shares and share value increased or not is also a different aspect from the non-implementation of the compromise and now in seeking to enforce by filing a petition of the said compromise or MOU arrived at through Hon'ble Mediator outside the Court. So far as binding ness and the same operates as estoppel concerned, law is fairly settled from the expression of Sneha Gupta supra. However, in view of the dispute and from the circumstances showing some change, which requires to adjudicate to do equity to both parties and whether such enforcement puts the parties if at all by now of the MOU arrived at in 2011 operates among plaintiff and defendant in an inequitable petition also requires to decide. Thereby it requires adjudication including the application along with main suit, if not to decide instantaneously by recording evidence. As in the case on hand, it requires the adjudication by recording further evidence also in relation thereto and cannot be said the Court is bound to decide instantaneously without adjournment, as the very proviso to Order 23, Rule 23 for reasons to be recorded if the Court thinks fit grant adjournment in deciding the question for adjudication of any such adjustment or satisfaction arrived in dispute for its enforceability even. 25. 25. Accordingly and in the result, the revision is allowed in part by setting aside the dismissal order of the lower Court and by restoration of the application in I.A.No.255 of 2015 of the lower Court to its file holding the same is maintainable to decide i.e., either to decide instantaneously or to decide along with the suit including by formulating with reference to the application a point for decision along with the issues for determination, including as to binding nature of the MOUs viz., the MOU and the revised MOU of 2010 and 2011, now chosen to enforce after some lapse of time, including from the change in circumstances and value of the property and value of the shares and how far it is equitable if at all, as it is the subjective satisfaction of Court that is required even to record any compromise or agreement or satisfaction. Consequently, miscellaneous petitions, if any shall stand closed. No costs.