Research › Search › Judgment

Patna High Court · body

2005 DIGILAW 625 (PAT)

Rajeshwar Pd. Sharma v. Mani Bhusan Sharma

2005-07-21

S.N.HUSSAIN

body2005
Judgment 1. Petitioners are plaintiffs of Title Suit No. 371 of 1973 which they had filed for partition of their moiety share in the suit property and for other ancillary reliefs. 2. The said suit was decreed on contest on 26-7-1976 and a Preliminary decree of partition of the plaintiffs moiety share was drawn. Against the said decree the defendants-opposite parties preferred First Appeal No. 775 of 1976, but subsequently the said First Appeal was withdrawn. It further transpires that proceeding for preparation of Final Decree was initiated in the year 1976 whereafter a compromise petition dated 1-3-1977 was filed in the suit by both the parties but after more than two years Plaintiff No. 2 filed an objection to which the defendants filed their rejoinder on 31-7-1979. Subsequently, on 10-9-1979 the learned Court below rejected the plaintiffs objection to the compromise petition and accepted the compromise directing for preparation of Final Decree. 3. Against the said order dated 10-9-1979 the plaintiff filed Civil Revision No. 2351 of 1979 which was allowed by this Court on 12-3-1984 (Annexure-1) and the said impugned order was set aside and the matter was remanded to the trial Court for recording its satisfaction that the compromise was lawful and the suit was adjusted wholly or partly. Thereafter, the matter was re-heard by the trial Court and by order dated 17-4-1998 (Annexure 2) the trial Court allowed the plaintiff s objection and rejected the compromise petition as not valid. 4. The aforesaid order was challenged by the defendants in Civil Revision No. 885 of 1998 which was later converted on 14-9-1998 into a Misc. Appeal bearing Misc. Appeal No. 443 of 1998 under the provision of Order XLIII Rule 1-A (2) of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity). However, since the valuation of the Misc. Appeal was much below the pecuniary jurisdiction of this Court, the plaint of Misc. Appeal was returned to the defendants-appellants on 18-1-1999 (Annexure-3) for filing it before a Court of proper jurisdiction. Thereafter, the defendants filed the said Misc. Appeal before the learned District Judge, Vaishali, where it was numbered as Misc. Appeal No. 3 of 1999. The learned District Judge, Vaishali, by the impugned order dated 16-6-2000 allowed the said Misc. Appeal was returned to the defendants-appellants on 18-1-1999 (Annexure-3) for filing it before a Court of proper jurisdiction. Thereafter, the defendants filed the said Misc. Appeal before the learned District Judge, Vaishali, where it was numbered as Misc. Appeal No. 3 of 1999. The learned District Judge, Vaishali, by the impugned order dated 16-6-2000 allowed the said Misc. Appeal and set aside the order of the trial Court dated 17-4-1998 and affirmed the earlier order dated 10-9-1979 accepting the compromise. This order has been challenged by the plaintiffs-respondents in this Civil Revision. 5. The learned counsel for the petitioners submitted that the lacuna in the said compromise was found by this Court while passing order dated 12-3-1984 in Civil Revision No. 2351 of 1979 and accordingly direction given in the said order was to be considered not only by the trial Court but also by the lower Appellate Court. He further contended that the learned lower Appellate Court which entertained the Appeal had no jurisdiction under the statute to entertain the same and hence the whole proceeding was misconceived and this Court by its order had come to a conclusion that Civil Revision No. 885 of 1998 was not maintainable and hence the matter was over and the second part of the order granting permission to convert the Civil Revision into a Misc. Appeal does not mean that Misc. Appeal was also maintainable as the conversion was allowed merely on the prayer of the petitioners. The learned counsel for the petitioners alternatively claimed that even if Misc. Appeal was maintainable, the learned lower Appellate Court cannot legally go against the order passed in the earlier Civil Revision No. 2351 of 1979 as the requirements enumerated therein were mandatory. 6. Appeal was also maintainable as the conversion was allowed merely on the prayer of the petitioners. The learned counsel for the petitioners alternatively claimed that even if Misc. Appeal was maintainable, the learned lower Appellate Court cannot legally go against the order passed in the earlier Civil Revision No. 2351 of 1979 as the requirements enumerated therein were mandatory. 6. The learned counsel for the petitioners also contended that errors were clearly enumerated in Paragraphs 2 and 3 of the order of this Court dated 12-3-1984 passed in Civil Revision No. 2351 of 1979 as there was no leave of Court for compromise on behalf of the minors and furthermore there was no affidavit under Order-XXXII Rule 7 of the Code to show that the compromise was for the benefit of the minors and hence in the absence of the aforesaid essential elements the compromise was voidable against all the parties and there was no finding in that order that the compromise was lawful whereas after the said order of this Court, the trial Court passed its order dated 17-4-1998 rejecting the compromise on specific findings holding that the compromise was not lawful. Hence, it was the duty of the Court below to see whether the earlier order of the Hon ble High Court and the provision of law were complied by the trial Court. In this connection, he pointed out that in the impugned order specially in Paragraphs-7 and 10 thereof there is no conclusion by the lower Appellate Court and only a lacuna was shown and furthermore there was also no finding in the impugned order that the suit was partly or fully adjusted and that the Court accepting the compromise had granted permission and that the compromise was in the interest of minors. 7. The learned counsel for the petitioners relied upon a decision of the Hon ble Apex Court in case of Banwarilal V/s. Smt. Chando Devi reported in AIR 1993, SC 1139, in which it was held that the trial Court had the jurisdiction and had considered all the points and hence the lower Appellate Court should not have interfered with the order of the trial Court. He also relied upon a decision of this Court in case of Lagandeo Singh V/s. Satyadeo Singh, reported in 1992(2) Pat LJ 184 : (AIR 1992 Patna 153) (DB), in which it was held that the remedy lies in Appeal and not in revision. It was also the contention of the learned counsel for the petitioners that such a compromise can be challenged by any party. Hence, according to him, the impugned order is illegal, arbitrary and perverse. 8. On the other hand, the learned counsel for the Opposite parties contested the claim of the petitioners and has submitted that the lower Appellate Court had considered the entire matter in detail and had passed the impugned order by a reasoned order after arriving at findings on all the issues involved and hence in the concluding part of the said order no detail was required and only decision was given allowing the Appeal. He further contended that Paragraphs 3 to 6 of order of this Court dated 12-3-1984 (Annexure-1) passed in the earlier Civil Revision No. 2351 of 1979 shows that some errors were found by this Court due to which the matter was remanded to the trial Court, but without properly appreciating the import of the earlier order of this Court, the trial Court rejected the compromise petition by order dated 17-4-1998 assuming that the compromise petition was not valid. But the lower Appellate Court considered both the said orders of the Court and passed the impugned order in the light of the direction/reservation of this Court on the earlier occasion after considering in detail each and every points raised by the parties. If signature itself was denied, enquiry was a must without which no finding could have been legally arrived at and hence the evidence followed in the trial Court after considering which the impugned order was passed. 9. The learned counsel for the Opposite parties further contended that the trial Court had clearly erred in assuming that the parties other than minors can challenge the compromise, although, it can only be the minor who can challenge the said agreement or decree after attaining majority. But here the minors were Mahesh Sharma and Umesh Sharma (Plaintiff Nos. 9. The learned counsel for the Opposite parties further contended that the trial Court had clearly erred in assuming that the parties other than minors can challenge the compromise, although, it can only be the minor who can challenge the said agreement or decree after attaining majority. But here the minors were Mahesh Sharma and Umesh Sharma (Plaintiff Nos. 5 and 6) but no objection was filed either by them or by their father Bindeshwar Sharma and the objection to the compromise was filed only by Rajeshwar Sharma and Chandeshwar Sharma (Plaintiff Nos. 2 and 3) who were admittedly major. 10. The learned counsel for the Opposite parties also submitted that Civil Revision No. 1335 of 2000 is clearly maintainable as per order of this Court passed on 15-9-2000. Hence, the question of maintainability raised by the learned counsel for the petitioners is barred by the principle of res-judicata. Thus, he submitted that the order of the lower Appellate Court is legal, proper and requires no interference. 11. After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that the Preliminary Decree stands affirmed by this Court whereas the Final Decree is pending since twentynine years for takhtabandi only. The matter has been delayed as one party or the other party had been approaching this Court against various orders passed by the learned trial Court on the question of acceptance of the compromise petition filed during the proceeding of Final Decree. 12. So far the question of maintainability of this Civil Revision is concerned, this issue has already been settled by this Court when this case was heard on 15-9-2000 and hence order at one stage of the proceeding acts as res judicata at all the later stages of the same proceeding as has been settled by the Hon ble Apex Court in case of Satyadhyan Ghosal V/s. Deorajin Devi reported in AIR 1960 SC 941 . 13. So far the case laws cited by the learned counsel for the petitioners in case of Lagandeo Singh (supra) and Banwarilal (AIR 1992 Patna 153) (supra) are concerned, it is not in dispute that the trial Court had the jurisdiction to consider the compromise petition and objections filed against it specially in view of the amended provision of Order XXIII Rule 3 of the Code. However, whether a miscellaneous appeal will lie against such an order is a matter which requires proper appreciation of Order XLIII Rule 1(A) of the Code specially in the circumstances where a decree is yet to be drawn up. However, this question does not require to be considered in the present circumstances as this Court has held on 14-9-1998 in Civil Revision No. 885 of 1998 that miscellaneous appeal would lie. 14. However, the main question is whether parties who were admittedly major at the time of the decree could raise objection to a compromise petition in which they had themselves participated. Order-XXXII Rule 7 of the Code provides sanction of the Court for compromise entered into on behalf of the minors to be recorded. This provision specifically provides that the compromise can be avoided by the minor against the parties who are majors and that it can- not be avoided by the parties who are majors against the minors. Hence, it is voidable at the instance of the minor and not at the instance of any other party. Furthermore if the minor avoids the said agreement, it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. Hence, the non observance of the said condition makes the agreement or decree only voidable at the instance of the minors. 15. Here, in the instant case it is not in dispute that objection was filed by Rajeshwar Pd. Sharma and Chandeshwar Sharma who were admittedly majors and not by Mahesh Sharma and Umesh Sharma who were said to be minors or by their guardian. In the aforesaid circumstances, the majors themselves being parties to the compromise and the minors not raising any objection as provided under the aforesaid provisions of law, there was no occassion for avoiding the compromise and rejecting the same at the instance of major parties. Hence, this case is squarely covered by the decision of the Hon ble Apex Court in case of Kaushalya Devi V/s. Baijnath Sayal, reported in AIR 1961, SC 790. Hence, this case is squarely covered by the decision of the Hon ble Apex Court in case of Kaushalya Devi V/s. Baijnath Sayal, reported in AIR 1961, SC 790. Furthermore, it is apparent from the record of the case that the minors, namely, Mahesh Sharma and Umesh Sharma or their guardian did not raise any objection in the trial Court and their impleadment as petitioners in the instant Civil Revision for the first time can legally be of no avail to the petitioners. 16. In the aforesaid facts and circumstances, I do not find any illegality or jurisdictional error in the impugned order of the learned Court below and this Civil Revision is accordingly dismissed.