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2005 DIGILAW 932 (PNJ)

Suraj Bhan v. Radha Devi

2005-09-02

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The defendant is in revision aggrieved against the order dated 5.11.1999 passed by the Learned Trial Court whereby the application for recording of compromise on the basis of special oath was declined and suit was ordered to be decided on merits giving an opportunity to lead evidence to both the parties. 2. Plaintiff-respondent filed a suit for declaration to the effect that she is owner of 7/10th share of land measuring 418 kanals 14 marlas and that mutation sanctioned on 3.5.1980 on the basis of consent decree dated 18.2.1980 suffered by Thandu Ram and Smt. Kanti Devi with regard to the land measuring 262 kanals 16 marlas out of the aforesaid land is based on misrepresentation, deceit and fraud. Therefore, the plaintiff claimed possession of the aforesaid land after she sought to avoid the aforesaid decree and mutation in the present suit. 3. During the pendency of the said suit, attorney to the plaintiff made an offer that if Suraj Bhan defendant would make a statement in temple that decree by Thandu Ram and Smt. Kani Devi is correct and valid then the attorney would withdraw the present suit. Defendant Suraj Bhan accepted the said offer. The court issued local commissioner and before Suraj Bhan defendant could take oath in the temple, the attorney made statement that he is satisfied with the decree. Subsequently, the plaintiff moved an application that the case be decided on merits after recording evidence but it was the case of the defendant that in view of the statement before the Court and the report of the local commissioner based on oath of the defendant the suit be decided as the statement of the parties recorded by the court formed a valid and complete written contract. 4. Learned trial Court earlier allowed the application of the plaintiff and ordered that the suit be decided on merits in accordance with law after giving an opportunity to the parties to lead evidence on merits of the controversy raised. The said order dated 13.10.1998 was set aside by this Court in revision petition and the matter was remitted back to decide the matter afresh keeping in view the judgment of Full Bench of this Court report in Mrs. Florabel Skinner and Ors. v. Jai Bajrang Kala Mandir Ram Lila Mandal, (1980)82 P.L.R. 775. 5. The said order dated 13.10.1998 was set aside by this Court in revision petition and the matter was remitted back to decide the matter afresh keeping in view the judgment of Full Bench of this Court report in Mrs. Florabel Skinner and Ors. v. Jai Bajrang Kala Mandir Ram Lila Mandal, (1980)82 P.L.R. 775. 5. The learned Trial Court vide impugned order found that neither there is any authority in favour of Balbir Singh, the attorney of the plaintiff for withdrawal of the suit nor there is any written compromise nor defendant No. 2 to 5 have consented or made any offer in the present suit. Still further, it has been found that provisions of Special Oath Act has been repealed and therefore, the statement of the parties to abide by oath in the temple not enforceable. 6. There is nothing on record that special power of attorney in favour of Balbir Singh authorises him to make a statement for withdrawal of the suit. Therefore, the finding recorded by the learned Trial Court that the attorney was not competent to make statement for withdrawal of the suit in terms of the oath made by defendant No. 1 in the temple cannot be doubted in any manner. Even otherwise the statement before the Court was to the effect that defendant No. 1 has to state in the temple that the decree suffered by Thandu Ram and Kahni Devi in their favour is valid. Admittedly, no such statement was made by the defendant in the temple. It is the case set up by the parties themselves that before such statement could be made the attorney made a statement that he is satisfied with the decree. The defendant has not taken special oath in the temple because the plaintiff is satisfied. It necessarily means that statement of parties before the Court that defendant No. 1 was to take special oath in the temple was not complied with. Therefore, even if the statement before the courts by the attorney is taken to be a contract, still admittedly the parties had not made statement in terms of the said contract therefore, the finding recorded by the learned Trial Court that the suit should be decided on merits cannot be faulted with. Therefore, even if the statement before the courts by the attorney is taken to be a contract, still admittedly the parties had not made statement in terms of the said contract therefore, the finding recorded by the learned Trial Court that the suit should be decided on merits cannot be faulted with. It may be noticed that provisions of special oath containing in Sections 9 to 12 of the Indian Oath Act, 1873 has since been repealed while promulgating the Oaths Act, 1969. 7. Therefore, I do not find that the findings recorded by the learned Trial Court suffer from any patent illegality or material irregularity warranting interference by this Court under Article 227 of the Constitution of India. Consequently, the revision petition is dismissed with costs of Rs. 5,000/-. Such costs shall abide the final judgment and decree. 8. The petitioner be directed to appear before the Trial Court on 3.10.2005 for further proceedings in accordance with law.