Ajay Ishwar Ghute & Ors. vs Meher K. Patel & Ors.

Held: Reliance placed on the Judgment of this Hon’ble Court in Speed Ways Picture Pvt. Ltd. and Anr. v. Union of India and Anr.[1996] Supp. 7 SCR 636 : (1996) 6 SCC 705 : 1996 INSC 1202 where this Hon’ble Court considered the practice of passing orders in terms of “Minutes of Order” – For the convenience of the Court and as a matter of courtesy, the advocates draft “Minutes of Order” containing what could be incorporated by the Court in its order – Perhaps this practice was evolved to save the time of the Court – The advocates who sign and tender the “Minutes of Order” have greater responsibility – Before they sign the “Minutes of the order”, the advocates have an important duty to perform as officers of the Court to consider whether the order they were proposing will be lawful – They cannot mechanically sign the same – After all, they are the officers of the Court first and the mouthpieces of their respective clients after that. [Para 18] Civil Law – Order XXIII of Code of Civil Procedure, 1908 – Filing of Consent Terms – Court has jurisdiction to decline to pass a consent order, if the same is tainted with illegality – Consent Terms not binding on persons who were not parties to the Consent Terms.

Held: Even if parties file consent terms, while accepting the consent terms in terms of Rule 3 of Order XXIII of the Code of Civil Procedure, 1908, the Court is duty-bound to look into the legality of the compromise – The Court has the jurisdiction to decline to pass a consent order if the same is tainted with illegality – An order passed by the Court in terms of consent terms is a consent order, which will not bind the persons who were not parties to the consent terms, unless they were claiming through any of the parties to the consent terms. [Para 19]

Practice and Procedure – Summary of conclusions regarding the concept of “Minutes of Order”.

Held: This Hon’ble Court summarized its findings on the concept of “Minutes of Order” as – (a) The practice of filing “Minutes of Order” prevails in the Bombay High Court – As a courtesy to the Court, the advocates appearing for the parties to the proceedings tender “Minutes of Order” containing what could be recorded by the Court in its order – The object is to assist the Court; (b) An order passed in terms of the “Minutes of Order” tendered on record by the advocates representing the parties to the proceedings is not a consent order – It is an order in invitum for all purposes; (c) Before tendering the “Minutes of Order” to the Court, the advocates must consider whether an order, if passed by the Court in terms of the “Minutes of Order,” would be lawful – After “Minutes of Order” is tendered before the Court, it is the duty of the Court to decide whether an order passed in terms of the “Minutes of Order” would be lawful – The Court must apply its mind whether the parties who are likely to be affected by an order in terms of the “Minutes of Order” have been impleaded to the proceedings; (d) If the Court is of the view that an order made in terms of the “Minutes of Order” tendered by the advocates will not be lawful, the Court should decline to pass an order in terms of the “Minutes of Order”; and

(e) If the Court finds that all the parties likely to be affected by an order in terms of the “Minutes of Order” are not parties to the proceedings, the Court will be well advised to defer passing of the order till all the necessary parties are impleaded to the proceedings. [Para 20]