w w w . L a w y e r S e r v i c e s . i n

Surendra Ojha v/s Mostt. Panpati Knur

    C. R. 1594 of 2005 C. R. 1594 of 2005

    Decided On, 13 February 2008

    At, High Court of Bihar


    For the Appearing Parties:------------

Judgment Text

(1.) HEARD learned counsel for the sole petitioner and learned counsel for the Opposite parties.

(2.) THIS Civil revision has been filed on behalf of the defendant challenging order dated 2-7-2005 by which the learned subordinate Judge 7th, Siwan rejected his petition regarding non-maintainability of the suit due to bar imposed under Order 23, rule 3a of the Code of Civil Procedure (hereinafter referred to as the 'code' for the sake of brevity) in Title Suit No. 48 of 2002.

(3.) THE aforesaid suit was filed by the sole original plaintiff-Opposite party for declaration that the compromise decree dated 18-1-2000 passed in Title Suit No. 331 of 1994 was illegal, without any basis, frivolous and prayed to set aside the same and pass an order of injunction against the defendants.

(4.) THE said Title Suit No. 331 of 1994 was filed by the petitioner against the opposite party for specific performance of contract in which a compromise petition was filed on 15-4-1996 with signatures u. both the parties whereafter the said suit was decreed on 18-1-2000 on the basis of the said compromise. Much thereafter Title suit No. 48 of 2002 was filed by the Opposite Party for declaration that the aforesaid compromise decree in Title Suit No. 331 of 1994 was illegal and to set aside the same claiming that the Opposite Party had neither appeared in the earlier Title suit No. 331 of 1994 nor he had engaged any advocate nor had filed any Vakalatnaina and the entire procedure was a fraud upon him by the petitioner.

(5.) IN Title Suit No. 48 of 2002 the petitioner who was a defendant filed a petition on 30-7-2003 claiming that the suit is not maintainable in view of the specific bar provided under Order 23, Rule 3a of the code according to which no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. To the said petition a rejoinder was filed by the Opposite party stating that he had never appeared in the suit nor participated in the alleged compromise and hence he was fully justified in filing the aforesaid suit for the reliefs claimed therein. The learned Court below dismissed the petition of the defendant-petitioner on the ground that issue has already been settled for the purpose of determining the real questions in controversy between the parties and it was expedient to adjudicate the said issue along with preliminary issue raised by the defendant.

(6.) ON the basis of the averments made by the parties and the materials on record, it is quite apparent that the real question in issue in the instant suit is as to whether the compromise on the basis of which the decree in the earlier suit was passed was lawful. The law is well settled in that regard as Order 23, Rule 3a of the code specifically provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Furthermore, a Division Bench of this court in case of Guru Charan Singh v. Mahatam Singh, reported in 2006 (3) PLJR 345 has specifically held that if a decree is passed on the basis of any compromise and in view of the provisions referred to above the only remedy open to plaintiff for challenging the said decree is to prefer an appeal under Section 96 of the Code, and not by a suit which was not maintainable. The division Bench of this Court specifically referred to paragraph 9 of the decision of the hon'ble Apex Court in case of Banwari Lal v. Smt. Chando Devi, reported in 1993 (1)PLJR 21 : (AIR 1993 SC 1139) which is as follows (para 9) :-

"section 96 (3) of the Code says that no appeal shall lie from a decree passed by the court with the consent of the parties. Rule 1a (2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96 (3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under order 43, Rule 1 (m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly, a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by rule 3-A of Order 23. As such a right has been given under Rule 1a (2) or Order 43 to a Party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96 (3) of the Code shall not be a bar to such an appeal because Section 96 (3) is applicable to cases where the factum of compromise or agreement is not in dispute. "

(7.) APART from having a remedy for challenging the earlier compromise decree in title Suit No. 331 of 1994 by way of an appeal before the higher Court, the petitioner had also filed a separate Miscellaneous Case no. 28 of 2004 under the provisions of order 23, Rule 3-A for the same relief as has been sought for in Title Suit No. 48 of 2002 and the said Miscellaneous case is pending before the learned Munsif I, Siwan which still continuing.

(8.) IN the aforesaid facts and circumstances of the case the suit in question, namely, title Suit No. 48 of 2002 is clearly in the teeth of Order 23, Rule 3a of the Code. Hence the impugned order by which the learned Court below held that the said suit will be decided finally on all the issue

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s including the instant issue is against the specific provisions of law as and the learned court below has no jurisdiction to proceed with the suit. Thus this civil revision is allowed and the impugned order of the learned court below is set aside. (9.) IT may be noted that this Court has neither expressed its view with respect to miscellaneous case filed by (he Opposite parly nor this Court has placed any bar to the filing of any appeal by the Opposite party in any Court of appropriate jurisdiction. Both the matters have to be considered on their own merits by (he Courts concerned if and when required in accordance with law. Revision allowed.