Jagannath v. Siya Ram — 1983 DIGILAW 244 (ALL)

JUDGMENT Kaushal Kishore, Member. - This is a defendant's second appeal against the judgment and decree and dated February 18, 1975 by the learned Additional Commissioner. Faizabad Division, Faizabad, dismissing the appeal and confirming the learned trial court's decree, holding Siya Ram plaintiff respondent as the sole sirdar of plot number 201. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The facts in brief are that Siya Ram son of Mohan Lal and grand-son of Molhey claimed the land in suit to be his sole Sirdari having been acquired by Mohan Lal his father while Jagannath and Tulsi two other sons of Molhey had got their names recorded on the plot and claimed to be Sirdars and also claimed that Siya Ram's father Mohan Lal was not son of Molhey but was the wife's brother of Laltey son of Molhey. Later, Lalta and Chunni two other sons of Molhey were also impleaded as defendants and Kaushaly wife of Tulsi was substituted on the death of Tulsi. Admittedly, Molhey had five sons. The learned trial court held Siya Ram's father Mohan Lal to be the son of Molhey and held the land in dispute to have come down from Mohan Lal to Siya Ram who was held to be Sirdar and the suit was decreed accordingly. The learned Additional Commissioner in first appeal held that the suit had rightly proceeded under Order XVII, Rule 3, C.P.C. and dismissed the appeal. In the second appeal also, the same question was raised that the court should have proceeded under Order XVII, Rule 2, C.P.C. and not under Order XVII, Rule 3, C.P.C. 4. During the pendency of the appeal, a compromise was filed on September 24, 1982 which was verified by the learned trial court on November 25, 1982 and returned to the Board. This compromise sought share each to be allowed to Jagannath and Mst. Kaushalya and share to Siya Ram in the land in dispute. The compromise was entered into by these three persons only. This compromise sought share each to be allowed to Jagannath and Mst. Kaushalya and share to Siya Ram in the land in dispute. The compromise was entered into by these three persons only. On October 1, 1982, Putti Lal and Ramesh Chandra filed an application for their impleadment as respondents in the appeal on the ground that Siya Ram had entered into an agreement to sell the land in question to them and had also received an advance from them and after hearing the parties, this application was allowed by the order dated February 7, 1983. The compromise has now been contested by the newly impleaded respondents Patti Lal and Ramesh Chandra, on the ground that Siya Ram has no right left to enter into the compromise. 5. The learned counsel Sri Syed Moziz Abbas argued in favour of the compromise that it was a lawful compromise in terms of Order XXIII, Rule 3, C.P.C. and the appeal may be decided in terms of the compromise. He cited rulings reported in A.I.R. 1932 Alld. 478 and A.I.R. 1946 Patna 97 in support. In the former ruling, it was held that a compromise would be lawful if the terms or the nature of the compromise are not unlawful and it would include even voidable compromise and an objection by a stranger third party had to be rejected. In the latter ruling, it was held that no claim of the parties are to be considered while considering a compromise for acceptance. The learned counsel for Putti Lal and Ramesh Chandra, Sri S.D. Pathak argued that these two impleaded parties derived an interest from Siya Ram and claimed that Siya Ram was entitled to full share in the land in dispute, that the said compromise seeking to undo the concurrent decree by the two courts below and seeking to surrender the share to two other sons of Molhey was unlawful and against the provisions of revenue law and that in view of the registered agreement dated February 6, 1973 acceptance of the premium from them Siya Ram had no authority to enter into unlawful compromise. He further argued that three ingredients were necessary for acceptance of a compromise, satisfaction of the court, adjustment of the suit and a lawful agreement of compromise. But the present compromise has not been shown to be lawful in any aspect of the case. He further argued that three ingredients were necessary for acceptance of a compromise, satisfaction of the court, adjustment of the suit and a lawful agreement of compromise. But the present compromise has not been shown to be lawful in any aspect of the case. He further pointed out to the explanation of this Rule added by the amendment of 1976 by which a compromise which is void or voidable is not lawful and as he argued that the ruling of 1932 mentioned above would not be applicable to this extent and the terms of the compromise have to be looked into to ascertain whether it is lawful or not. He further argued that the compromise which does not say that it is free from coercion etc. in terms of Section 23 of the Contract Act cannot be said to be a lawful compromise, that half surrender of Sirdari was not permissible nor surrender of Bhumidhari by compromise could be termed lawful and in addition, the compromise sought to defraud Putti Lal and Ramesh Chandra and so it was an unlawful compromise which must not be accepted. In support, he cited rulings reported in A.I.R. 1960 A.P. 32, A.I.R. 1963 A.P. 46, A.I.R. 1980 Mad. 391, A.I.R. 1959 Patna 17 and 1972 R.D. 215. In the first ruling, it was held that an alienee pendente lite who has been added as a party to the litigation is entitled to object to a decree being passed in terms of a compromise arrived at between an alienor and the opposite party and that even if the object of the parties was unlawful in part, the compromise would be affected under Section 23 of the Central Act and in this view, no decree can be passed in terms of the compromise. 6. In the second and the third rulings cited, the same view has been held. In the fourth ruling, it was held- "The word lawful used under Order XXIII, Rule 3, C.P.C. means lawful within the meaning of Contract Act, therefore, the object or consideration of the compromise on which the decree is based comes within any of the matters enumerated in Section 23, Contract Act, as making an agreement unlawful, the compromise decree itself is unlawful and is thus void. The ruling fully applies to his case in view of the registered agreement dated February 6, 1978 and receipt of premium from Putti Lal and Ramesh Chandra by Siya Ram. In the fifth ruling by the Board, it was held that there was a difference between Section 49 of the U.P. Tenancy Act and Section 176 of the U.P.Z.A. and L.R. Act, that while in the former by Section 33-C of the U.P. Tenancy Act, a tenant could release or transfer his interest in favour of a co-tenant, no such provision exists in the U.P.Z.A. and L.R. Act and so no compromise in a suit in variance to the legal shares of the parties would be binding. On the question of compromise Sri Syed Moziz Abbas further argued that only the nature of the compromise meaning thereby the form of compromise could be examined and not the contents of the compromise but as further case law was cited by him in support of the point. 7. I have gone into the question of lawfulness of the compromise in depth and while dealing with the reverse matters, I am bound to hold that the compromise in order to be acceptable should not go against the provision of the revenue law, apart from other requirements shown in the case law cited by the parties. I do not agree with the view of the learned counsel for the compromise that a compromise even against the provisions of the U.P.Z.A. and L.R. Act could be deemed lawful just on the basis of its form and presentation. The ruling reported in 1972 R.D. 215 makes it clear that the terms of the compromise go against the U.P.Z.A. and L.R. Act. Apart from the concurrent finding of the two courts below for the appellant having no share in the land in dispute, if at all the land came down from the common ancestor Molhey it should have been divided amongst the five sons or the five branches and not only amongst three branches, leaving aside the unfairness of the shares. There is no doubt left even on the basis of the rulings cited in favour of the compromise that the terms of the compromise should be such as to make it lawful. The contents of a compromise cannot be overlooked. The three rulings cited viz A.I.R. 1960 A.P. 32. There is no doubt left even on the basis of the rulings cited in favour of the compromise that the terms of the compromise should be such as to make it lawful. The contents of a compromise cannot be overlooked. The three rulings cited viz A.I.R. 1960 A.P. 32. A.I.R. 1963 A.P. 46 and A.I.R. 1920 Mad. 391 are fully applicable to the instant case and support the case of Putti Lal and Ramesh Chandra, rendering the compromise as unlawful. 8. There is another aspect that this compromise is not by all the parties in this appeal. It leaves out Lalta and Chunni sons of Molhey as also the newly impleaded parties to this litigation now, they are not strangers to the litigation and they have a right to object to the compromise entered into by only some of the parties. There is no answer to the charge that this compromise violates Section 23 of the Contract Act. In view of these circumstances, the compromise is clearly unlawful and is also not an adjustment of the suit between the parties to the suit and must be rejected. Therefore, this compromise is hereby rejected. 9. After arguments were heard and the case was fixed for judgment on March 21, 1983, an application by Siya Ram respondent-plaintiff was filed on March 17, 1983 that he did not want to continue the suit and wanted to withdraw the suit, therefore, the appeal may not be decided in terms of the compromise or on merits after rejection of the compromise but the applicant be permitted to withdrawn the suit and the two decrees by the learned trial court and the learned first appellate court may be set aside and the suit be dismissed. No doubt, this application for withdrawal after arguments in the appeal indicated unlawful connivance between some of the parties, particularly when on behalf of Siya Ram as well as the appellant even the arguments on merits were heard on March 10, 1983 as clearly mentioned in the order on March 9, 1983 when the arguments were heard only on the compromise and hearing was adjourned for March 10, 1983 for arguments on merits specifically, and incorrect statement in para. 3 of this application that arguments were heard on the question of accepting the compromise and passing the decree in terms of the compromise or to reject the compromise and hear and decide the appeal on merits is quite objectionable. Since the right to withdrawn a suit at any stage vests in the plaintiff, if there was no particular complication in the appeal like the plaintiff's interest being shared by the newly impleaded parties, there would not be any difficulty in allowing the withdrawal of the suit. But the position is different in this case that after finding that the compromise by which connivance between the appellant and the respondent number 1 could be concluded was unlawful and unacceptable, withdrawal application has come from the original plaintiff alone. It is observed that the newly impleaded parties have been made respondents in this appeal but it was not clarified whether they would be co-plaintiff or co-defendants. By the nature of this appeal and developments coming to light, no doubt is left that the newly impleaded parties Putti Lal and Ramesh Chandra are stepping into the shoes of the plaintiff. They are entitled to be deemed as co-plaintiff. What could not be achieved by the unlawful compromise is sought to be achieved by this withdrawal. While rejecting the compromise as unlawful if the suit is allowed to be withdrawn permitting the parties to the compromise to achieve their unlawful purpose, the ends of justice would gravely suffer. The provision for withdrawal of the suit is also covered by Section 151 C.P.C. which may be reproduce below for a full appreciation: "Section 151. Saving of inherent powers of Court-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the court." 10. I am fully convinced that this withdrawal application is a clear abuse of the process of the court. The words 'nothing in this Code' under Section 151 C.P.C. are very significant. It appears that they were purposely included for such awkward situation. I have, therefore, no alternative but to reject this application for withdrawal of the suit by invoking the inherent power of the court under Section 151 C.P.C. in the ends of justice and it is hereby so rejected. 11. It appears that they were purposely included for such awkward situation. I have, therefore, no alternative but to reject this application for withdrawal of the suit by invoking the inherent power of the court under Section 151 C.P.C. in the ends of justice and it is hereby so rejected. 11. Even taking Putti Lal and Ramesh Chandra as respondents/co-plaintiffs, Siya Ram does not remain the sole plaintiff and his rights for withdrawal of the suit at this last stage do not remain complete and the application is bound to be rejected on this could also . The withdrawal application dated March 17, 1983 is, accordingly, also rejected. 12. Coming to the consideration on merits of the appeal, the learned counsel for the appellant has not argued anything against the applicability of the Order XVII Rule 3 C.P.C. But the learned counsel for the newly impleaded parties argued that even though the counsel for the defendant had no instructions in the trial court at a certain stage it cannot be said that he had ceased to be the counsel for the defendant. In support, he cited a ruling reported in 1981 A.W.C. 822. In view of this ruling, no doubt is left that Rule 3 was rightly applied as also held by the learned Additional Commissioner. It is further observed that it was not the first date of appearance on which the defendants were absent but they had already appeared and filed their written statements. So it was a subsequent absence and there was no question of applying the provisions under Order IX, C.P.C. and Order XVII, Rule 2, C.P.C. would also not be applicable. In fact, the legal position in this behalf is so simple that it can be said that no question of law is involved in this second appeal which deserves to be dismissed. 13. I should not leave one observation about the Vakalatnama filed by Sri Syed Moziz Abbas which would have entitled to him to represent Smt. Kaushalya. But it is without any thumb-mark or signature of Smt. Kaushalya while the thumb-mark of Siya Ram appears to be there but the name of Siya Ram has been crossed out by the learned counsel himself under his five initials and the name of Smt. Kaushalya appears to be written in his own hand. So it would appear that he was representing neither Siya Ram nor Smt. Kaushalya. So it would appear that he was representing neither Siya Ram nor Smt. Kaushalya. 14. In consequence, this appeal is found to be without and is hereby dismissed with costs.