Sanmatia v. Ramkuar Prasad Singh — 1979 DIGILAW 266 (PAT)

Judgment S. Narain, J. 1. This application by plaintiff Nos.1 to 3 is directed against an order dated 3.8.1977, by which the learned Third Additional Subordinate judge, Gopalganj, has rejected the petition filed by petitioner No.1, Mst. Sanmatia (Plaintiff No.1) for setting aside the compromise petition filed on 21.9.1974. 2. The compromise petition was filed in a suit brought by plaintiff No.1, mst. Sanmatia, and her two minor children (Plaintiff Nos.2 and 3), besides one Sudhistha Prasad, who was plaintiff No.4. The main reliefs claimed in the suit were a declaration that the plaintiffs never executed the impugned sale-deed in favour of defendant no.1, Ramkuar Prasad Singh, and that the said sale-deed was not fit to be registered and an injunction restraining defendant no.1 from getting the aforesaid sale-deed registered. During the pendency of that suit in the court of the third Additional Subordinate Judge, Gopalganj, the suit had been numbered as Title Suit No.54 of 1967 a petition of compromise was filed on.21.9.1974 purporting to be on behalf of plaintiff Nos.1 to 3 and defendant No.1. Itpurported to bear the thumb-impression of Mst. Sanmatia, plaintiff No.1, on behalf of herself and her minor children, plaintiff Nos.2 and 3, and also the signature of one Shyam Badan Singh, Advocate for the plaintiffs. It was recited in the petition of compromise that plaintiff No.1, Mst. Sanmatia, had been a victim of fraud and misrepresentation and had been prevailed Upon to institute the suit and it had been now agreed between the parties that the disputed sale-deed in favour of defendant No.1 was genuine and valid executed by the plaintiffs, and by virtue of the said sale-deed, defendant No.1 would acquire sixteen annas title over the property which was the subject-matter of the sale-deed. Another term of the compromise was that both the parties would bear their own costs of the suit. On 21.9.1974 itself, another petition purporting to be on behalf of plaintiff No.1, Mst. Sonmatia, who had sued as next friend of her minor children, plaintiff Nos.2 and 3, was filed stating that the compromise was for the benefit of the minor plaintiffs Nos.2 and 3 and plaintiff No.1 be granted leave to compromise the suit On behalf of the minor plaintiffs. Sonmatia, who had sued as next friend of her minor children, plaintiff Nos.2 and 3, was filed stating that the compromise was for the benefit of the minor plaintiffs Nos.2 and 3 and plaintiff No.1 be granted leave to compromise the suit On behalf of the minor plaintiffs. Both the compromise petition and the petition for leave to compromise the suit on behalf of minor plaintiffs were put up before learned Additional subordinate Judge on 25 11.1974 and the learned Additional Subordinate Judge on that date passed the following order (the order is in Hindi and what follows is the English translation thereof) : "both parties have filed Hazris. The compromise petition on behalf of plaintiffs 1 to 3 and defendant No.1 put up. The petition of the female plaintiff praying for permission to compromise on behalf of the minor plaintiffs is also put up. Permission as prayed for is granted. " By the aforesaid order, the learned Additional Subordinate Judge also directed that the compromise petition should be put up at the time of hearing of the suit. 3 Thereafter, on the 2nd January, 1975, Plaintiff No.1, Mst. Sanmatia, filed an application praying to cancel the aforesaid compromise on the allegation that she had not entered into any compiomise with defendant No.1 or filed any compromise petition or affixed her thumb-impression or signed on any compromise petition, and that the only Advocate appointed by her in the suit was one Pandit Sheopujan Mishra ana that the compromise petition was forged and fabricated. It was also alleged in the said application that the children of plaintiff No.1, who were minors, had not been benefited by the compromise in any way. According to the plaintiff No.1, about a week prior to the filing of the application, she had learnt that defendant No.1 was going about mating that the suit had been decided in his favour and then she came to know of the aforesaid fraudulent compromise petition. 4. The application was contested by the defendants who denied that the compromise petition was not genuine. 4. The application was contested by the defendants who denied that the compromise petition was not genuine. They asserted that the compromise petition had been drafted in accordance with the instruction of the plaintiff no.1 and she had got the compromise petition read over and it was only after fully understanding the contents thereof that she had affixed her thumb-impression thereon and signed per men of Bikrama Prasad and she had got the compromise petition filed through Sri Shyam Badan Singh, Advocate, after executing a vakalatnama in his favour as her former Advocate created difficulties in filing of the petition. 5. The learned Additional Subordinate Judge after taking evidence in the matter and considering the facts and circumstances of the case, held that the compromise petition filed on 21.9.1974 was genuine, valid and binding on plaintiff Nos.1 to 3 and that plaintiff No.1 by order dated 25.11.1974 was given permission to compromise the suit on behalf of the minor plaintiffs Nos.2 and 3 as well. He, however, said that as plaintiff No.4 had not joined the compromise, the compromise petition could not be recorded at that state. The learned Additional Subordinate Judge, as already stated, rejected the application filed by plaintiff No.1. 6. Shri Mathur appearing on behalf of the petitioner did not and indeed could not impugn the finding of the learned Additional Subordinate (sic) (Judge)in this revision application that the compromise petition filed in Court was genuine and that plaintiff No.1 was given permission to compromise the suit on behalf of minor plaintiffs Nos.2 and 3. He, however, contended that the compromise should be cancelled on the ground that in granting permission to compromise the suit on behalf of minor plaintiff Nos.2 and 3, the provisions of Order 32, rule 7 of the Code of Civil Procedure were not complied with. In the first place, it seems anomalous that the plaintiff No.1, who is petitioner no.1 in this Court, and who had on the finding which is not impugned hereself prayed for permission to compromise the suit on behalf of minor plaintiff Nos.2 and 3, should now be permitted to impugn the permission granted by the Court. Secondly, the order granting leave under Order 32, rule 7 of the Code of Civil Procedure was passed on 25.11.1974. The argument impugns the validity of the order dated 25.11.1974. Secondly, the order granting leave under Order 32, rule 7 of the Code of Civil Procedure was passed on 25.11.1974. The argument impugns the validity of the order dated 25.11.1974. If the petitioner No.1 was aggrieved by that order dated 25.11.1974, even assuming that she could impugn that order, she should have filed a revision application against that order within the period of limitation. The present revision application in which this point is raised was filed on 11.10.1977, long after the expiry of the period within the validity of the order dated 25.11.1974 could be impeached in revision. In my opinion, however, it is not necessary to rest my decision on these two grounds inasmuch as the contention that the order granting permission to compromise the suit on behalf of the minor plaintiff Nos.2 and 3 contravenes the provision of Order 32, rule 7 of the Code of Civil Procedure must fail on merits also. 7. Shri Mathur first contended that the order is erroneous in law as the provision of Order 32, rule 7 (1-A) were not complied with. The provisions of order 32, rule 7 (1-A) were introduced by the Civil Procedure Amendment Act, 1976, which received the assent of the President of India on 9.9 1976, and came into force even later. The order was passed on 25.11.1974. The provision of order 32, rule 7 (1-A), therefore, cannot possibly apply. This contention must, therefore, fail. 8. It was next contended that there had been a contravention of the provisions of Order 32, rule 7 of the Code of Civil Procedure inasmuch as plaintiff No.1, the next friend of plaintiff Nos.2 and 3, had entered into negotiation and signed the compromise petition on behalf of minor plaintiff-Nos.2 and 3 before obtaining the permission of the Court. It is argued that before entering into the compromise, permission should have been obtained to enter into compromise on behalf of the minor plaintiff Nos.2 and 3. Some support for this contention is available from the observation of this Court in Awadesh prasad Missir and others V/s. Widow of Trboni Prasad Missir and others, (AIR 1940 Patna 663 ). It is argued that before entering into the compromise, permission should have been obtained to enter into compromise on behalf of the minor plaintiff Nos.2 and 3. Some support for this contention is available from the observation of this Court in Awadesh prasad Missir and others V/s. Widow of Trboni Prasad Missir and others, (AIR 1940 Patna 663 ). But the decision in AIR 1940 Patna 663 was specifically disapproved by the Supreme Court in Bishundeo Narain and another V/s. Seogont Rai and others, ( AIR 1951 SC 280 ), where it was held that though according to the provisions of Order XXXII, rule 7 of the Code of Civil Procedure no next friend or guardian can enter into an agreement and compromise which will bind the minors unless the Court sanctions the same, the provisions do not mean that the guardian must obtain sanction of the Court even before he begins negotiation with the other side. As was pointed out in the case of Dharnidhar rai and other V/s. Phul Kumari Devi and others, (AIR 1945 Patna 391) by sinha J (as he then was), speaking for the Bench of this Court that the prohibition contained in-rule 7 of Order 32 does not go to the length of saying that a compromise entered into by the adult members may not be sanctioned by the Court ; even if the application for according the compromise is accompanied by an application on behalf of the guardian ad-litem for the leave of the court. In the present case, the application was filed before the sanction was accorded and indeed along with the compromise petition. This contention must also, therefore, fail. 9. The last contention put forward by Shri Mathur in support of his argument of non-compliance of Order 32, rule 7 of the Code of Civil Procedure is that the learned Additional Sub-ordinate Judge while granting leave to compromise has not recorded any reasons for granting the permission sought for It is urged that not only an order under Order 32, rule 7 should record permission, it should also record the reasons for granting that permission. This contention is negatived by a Bench decision of this Court in Babu Prasad Jha and other V/s. Mahabirjha (AIR 1951 Patna 294 ). This contention is negatived by a Bench decision of this Court in Babu Prasad Jha and other V/s. Mahabirjha (AIR 1951 Patna 294 ). A similar contention in that case was negatived, and while doing so, Sarjoo Prasad, J. (as he then was), appearing for a Bench of this Court, held that under Order 32 rule 7 of the code of Civil Procedure, no particular formula is necessary and the Court is not bound to give reasons for granting permission to the guardian ad-litem to enter into agreement for entering into a compromise. In support of this proposition, the learned Judge cited the following passage from a judgment of Kulwant Sahay, j. in Ishan Chandra V/s. Nilratan, (ILR (1923) 2 Patna 538): "in order to attract the provisions of Order 32, rule 7, Civil Procedure code it is enough to show that the attention of the Court was directly called to the fact that a minor was a party to the compromise and that the leave of the Court was obtained on petition or in some way not open to doubt. No particular formula is necessary to be used by the Court in order to grant the leave and when it is shown that an application was made by the guardian to the Court asking for leave to enter into the compromise and the Court makes a note of that application and passes a decree in terms of the compromise, it must be held that the leave of the Court was expressly recorded within the meaning of Order 32, rule 7 of the Code. " it the present case, the order-sheet dated 25.11.1974 clearly shows that the attention of the Court was directly called to the fact that minors were parties to the compromise and that the leave of the Court was obtained on that petition which was filed by the next friend of the minors and that the application was for leave to into the compromise and the Court has expressly granted the leave waved for It is manifest that the Court had applied its mind to the matter before granting leave to plaintiff No.1 to enter into the compromise on behalf of minor plaintiff NOB.2 and 3. 10. The decision reported in Awadhesh Pd. 10. The decision reported in Awadhesh Pd. Missir and others V/s. Widow of tribent Prasad Missir and others, (AIR 1940 Patna 663), which was relied upon in support of the contention that reasons must be recorded, lends no support, to the contention. There is an observation in-the decision in Kedar Nath Sahu V/s. Basant Lal Sahu and others, (AIR 1939 Patna 278) that the Court while granting permission under Order 32, rule 7 of the Code of Civil Procedure should record reasons for giving or refusing such permission. That decision, however, does not go to the extent of saying that if reasons are not given for giving the permission, the order granting permission is invalid. In that case, admittedly no application had been made to the Court by the guardian ad-litem of the minor for leave to enter into the agreement and it was. in those circumstances that it was held that in the absence of such leave, the subsequent proceedings were invalid at the option of the minor. The observations that the Court must expressly record its reasons for giving or refusing such permission were, therefore, in the nature of obiter dicta. 11. No other contention has been raised. 12. In the result, this application is without any merit and it is dismissed. As, however, there has been no appearance on behalf of the opposite party, there will be no order as to costs of this Court. Application dismissed.