Mukherjea, J. - (1.) This appeal by special leave is from a judgment and order passed by a Single Judge of the Bombay High Court on 22 June 1972. The appeal arises under rather peculiar circumstances which may be briefly set out as hereunder.
(2.) In January 1961 there was an agreement between the respondent and his landlords in regard to the purchase of a flat and two shops being, main shop No. 35A and a small shop No. 35. Various disputes arose out of this agreement with the details of which we are not concerned. On 9 March 1964 the landlords filed a suit in the Bombay High Court in which the landlords asked, as an alternative relief, for the ejectment of the respondent from the flat and the main shop No. 35A. The suit was numbered O.O.C.J. Suit No. 100 of 1964. The appellants who were in possession of the main shop No. 35A were made party defendants. On 17 October 1964 the respondent filed a counter-suit against the landlords for specific performance of the agreement to purchase the small shop No. 35 and, in the alternative, for damages of Rs. 34,000/-. This suit was filed in the Bombay City Civil Court, being suit No. 6519 of 1964. In this suit also the appellants were made party defendants. This suit, however, was on the application of the present respondent, transferred from the City Civil Court to the High Court and was heard along with suit No. 100 of 1964. On transfer the Bombay City Civil Court suit was renumbered as O.O.C.J. suit No. 61 of 1968. When these suits came for hearing before a learned Judge of the Bombay High Court; the counsel appearing on behalf of the parties settled the disputes between the parties. On 5th July, 1971 we are told, certain consent terms in the handwriting of the respondent's counsel which were signed also by the counsel for the landlords, the appellants and the respondent were handed over in Court to the learned single Judge hearing the suits. The learned Judge thereupon passed an order on the basis of these terms. The order was minuted in the following form: " By consent, decree in terms signed and handed in. One half of the Institution fee to be refunded." On the same day, some time later, another document containing the consent terms in a type-written form but bearing no signature on behalf of any of the parties was handed in to the associate of the learned trial Judge. The appellants say that neither they nor their attorneys nor their counsel were present at this time. It appears that this type-written document varies from the hand-written document that had been handed over to the learned Judge earlier in the day. One essential difference, we are told, was as to the date of an agreement which clearly appears in the type-written document as 21st May 1967. The appellants claim that in the hand-written document the date of agreement has been given as 21st May 1961 and that the entire course of transactions between the parties as well as all pleadings in the two suits will show clearly that neither party ever claimed that there was an agreement on 21st May 1967.
(3.) On 16th September 1971 the respondent's attorneys wrote to the appellants' attorneys demanding that possession of the small shop No. 35 should be handed over to the respondent and that a copy of the agreement of 21 May 1967 should be given to them. In reply the appellants' attorneys told the respondent's attorneys that there was in fact no agreement dated 21st May 1967 but there was an agreement of 21st May 1961 and further that in the consent terms there was no question of handing over possession of the small shop No. 35 to the respondent. On 20th September 1971, the respondent's attorneys sent their draft of the consent decree to the appellants' attorneys for approval. On 15th October 1971 the respondent took out Chamber Summons in execution of the consent decree for appointment of a Court Receiver and for possession of the the small shop No. 35. This application was taken out on the basis of the consent terms as appearing on the type-written document. The respondent obtained an ex parte order from the learned Judge hearing the Chamber Summons. The appellants in their affidavit in answer to the Chamber Summons denied that there was any agreement of 21st May 1967 or that the respondent was entitled to possession of the small shop No. 35. After hearing both the parties the learned Judge hearing the Chamber Summons vacated the ex parte order of appointment of Court Receiver. He, however, asked the appellants to deposit in Court Rupees 30,000/- which the respondent had paid to the appellants on account of the purchase price of the small shop No. 35 under the consent terms. The Chamber Summons was adjourned to Court for taking evidence Pursuant to this order the appellants deposited Rs. 30,000/- in the Court and the respondent withdrew that sum.;