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2001 DIGILAW 736 (MP)

RAGHUVIR SINGH v. RAMDARSHAN RAMCHARAN KIRAR

2001-10-09

S.P.KHARE

body2001
ORDER S.P. Khare, J. This is a revision by the Defendants No. 1 to 4 against the order dated 20-2-2001 in Civil Suit No. 1-A of 2001 of the Civil Judge, Class-II, Gadarwara by which he has fixed the case for inquiry whether the compromise decree dated 17-11-1999 in the earlier Civil Suit No. 83-A of 1999 of his Court is unlawful. Raghuvir Singh and three others who are the Petitioners herein had filed Civil Suit No. 83-A of 1999 in the Court of Civil Judge, Class-II, Gadarwara claiming certain reliefs in respect of land bearing Khasra No. 15 of village Jhikoli, Tahsil Gadarwara, District Narsinghpur. There was a compromise in that civil suit on 17-11-1999. An order under Order 23, Rule 3, CPC was passed recording the said compromise and a decree in accordance with the compromise was drawn. Ramdarshan and Tulsiram were Defendants Nos. 2 and 3 in that civil suit. They have now filed Civil Suit No. 1-A of 2001 in the same Court challenging the compromise decree on the ground that it is unlawful because the said compromise is the product of fraud. The Defendants Nos. 1 to 4 in this new civil suit submitted an application under Order 7, Rule 11, CPC for rejection of the plaint on the ground that the civil suit is barred under Order 23, Rule 3-A, CPC which 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. The trial Court considered this application and fixed the case for evidence on the point whether the compromise was lawful. In this revision it has been argued that the trial Court had no other option but to reject the plaint in view of the legal bar created by Order 23, Rule 3-A, CPC Code. The decision of this Court in Baijantibai v. Prago, 1991 JLJ 138 has been cited to support the plea that no suit lies to challenge the compromise on the ground of unlawfulness or otherwise of the compromise. The decision of the Supreme Court in Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, and of this Court in Babulal and Another Vs. Smt. Chaturiya and Others, have also been referred. The decision of the Supreme Court in Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, and of this Court in Babulal and Another Vs. Smt. Chaturiya and Others, have also been referred. In Banwari Lal's case the Supreme Court has exhaustively considered the relevant provisions of Order 23, Rule 3 and 3-A, CPC as amended by the CPC (Amendment) Act, 1976 and laid down that a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, in which he can question the validity of the compromise. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the Explanation to the proviso to Rule 3 and as such not lawful. Therefore, the entertaining of the application filed on behalf of the Plaintiff and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise, by the trial Court was proper. It has been noted in this case that prior to the amendment in 1976 the suits used to be filed for challenging the validity of such a compromise. By adding the proviso along with an Explanation, the purpose and object of the amendment appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the compromise in question. That Court is now enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. Having introduced the proviso along with the Explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar is prescribed by Rule 3-A in respect of institution of a separate suit for setting aside the decree on the basis of compromise. It was further observed that the application for the exercise of power under proviso to Rule 3 of Order 23 can be labelled u/s 151 of the Code but when by the Amending Act specifically such power had been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. In Babulal's case this Court following the above decision of the Supreme Court has held that an application u/s 151, CPC for setting aside the compromise decree on the allegation that the same is unlawful is maintainable. The question is whether the Plaintiffs in the present suit should be driven to file a separate application u/s 151 and the proviso to Rule 3 of Order 23, CPC which is the proper remedy to a person alleging that the compromise was unlawful as it was obtained by fraud or misrepresentation or the suit filed by him in the same Court can be treated as an application in the earlier suit and an inquiry can be made whether the compromise was not lawful. There can be no quarrel with the proposition that the independent civil suit is not maintainable in view of the specific legislative embargo. It appears that the subsequent civil suit has been filed under some legal confusion and in tune with the practice and procedure prevailing before 1976. It is well settled that the procedure is the handmaid for justice and unless the procedure touches upon the jurisdictional issue, it should be moulded to subserve substantive justice. Ramankutty Guptan Vs. Avara, . There is no procedural hurdle in treating the suit which is legally not maintainable as an application u/s 151, CPC in the earlier suit. The procedure devised by the Court to entertain an application u/s 151, CPC for inquiring whether the compromise was unlawful is a judicial innovation in order to ensure that a party does not suffer because he was the victim of fraud or misrepresentation or the compromise is otherwise unlawful. Even after the decree has been passed on the basis of a compromise after verification by the Court it is still permissible in a given case to assail the compromise on the ground of its unlawfulness. A separate suit has been barred but by a process of interpretation a procedure has been carved out to challenge an unlawful compromise. It would only be an extension of the said innovative thinking to treat the suit as an application u/s 151, CPC in the earlier suit. Therefore, in substance the trial Court has not committed any legal error in fixing the case for inquiry whether the compromise was lawful. The revision is dismissed. It would only be an extension of the said innovative thinking to treat the suit as an application u/s 151, CPC in the earlier suit. Therefore, in substance the trial Court has not committed any legal error in fixing the case for inquiry whether the compromise was lawful. The revision is dismissed. The trial Court is directed to treat the subsequent civil suit as an application u/s 151 and the proviso to Rule 3 of Order 23, CPC in the earlier suit in light of the above discussion and then proceed further according to law. If the present Civil Suit No. 1-A of 2001 is pending in different Court it will stand transferred to the Court which passed the decree in Civil Suit No. 83-A of 1999. Final Result : Dismissed