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2007 DIGILAW 110 (JK)

Gh. Rasool v. Mohd. Sidiq

2007-07-03

NIRMAL SINGH

body2007
1. This revision has been filed for setting aside the order passed by the learned Munsiff Thana Mandi dt. 28th of Jan05 in a civil suit titled Mohd Sadiq and ors v. Ghulam Rasool, vide which the preliminary issue framed by the learned Munsiff `whether the suit is maintainable or not has been decided in favour of the respondents. 2. The respondents filed a suit for declaration that the Will dated 22nd of March74 executed by one Nazam Din, S/o Alkah Din, R/o Doda, Tehsil Thanna Mandi, in favour of defendant-petitioner herein is in operative, null and void on the rights of respondents being forged one with consequential relief for permanent injunction restraining the petitioner from using this Will as valid. 3. On notice, the petitioner appeared before the learned trial court and filed written statement in which he pleaded that the respondents had already filed a civil suit challenging the Will in question on 4th of Aug92 before the court of learned District Judge, Rajouri, which was transferred to the court of learned Sub Judge, Rajouri. In the said suit, a compromise between the parties was effected. The respondents in the said suit had conceded the claim of the petitioners. Respondents No.5 and 6, though were not the plaintiffs in the earlier suit but they were signatories to the compromise. Hence, the said suit was dismissed. It was thus prayed before the learned trial court that the suit be dismissed being not maintainable. 4. The learned trial court framed following issues:- "1. Whether the Will dated 22.3.1974 executed by late Nazam Din, S/o Allah Din, R/o Dodaj, Tehsil Thanamandi is forged or not? OPP. 2. Whether the grand-father of the plaintiffs i.e. Nazam Din and father of the defendant was in possession of land to the extent of their share? OPP. 3. Whether in the Mohamadan Law, Will in favour of the heirs is valid or not? OPP. 4. Whether the defendant intend to dispossess the plaintiffs from their shareof land? OPP. 5. Whether this suit is maintainable or not?. OPD " 5. Issue No.5, as indicated above was treated as preliminary issue. After hearing learned counsel for the parties, the learned trial court vide impugned order held that the suit is maintainable, aggrieved by which the present revision petition has been preferred. 6. OPP. 5. Whether this suit is maintainable or not?. OPD " 5. Issue No.5, as indicated above was treated as preliminary issue. After hearing learned counsel for the parties, the learned trial court vide impugned order held that the suit is maintainable, aggrieved by which the present revision petition has been preferred. 6. At the very outset, it may be stated that the respondents are playing a game of hide and seek with the court. Respondents were duly served and on their behalf, Mr ZA Mughal, learned counsel appeared on 7th of April06, and sought adjournment. The case was taken up on 9th of June06, but no one appeared on behalf of the respondents. On 1st of Sept06, learned counsel for the petitioner appeared but there was no appearance on behalf of respondents. The petition came to be admitted on the said date. The case was again taken up on 5th of March07. Mr Harbans Lal, Advocate, appeared on behalf of the petitioner but there was no appearance on behalf of the respondents. On 16th of March07, again the petition was adjourned at the request of Mr ZA Mughal, learned counsel for the respondents. Thereafter, the case was listed on 5th of April07. On the said date, neither the respondents nor their counsel appeared and exparte proceedings were drawn against them and the case was directed to be listed after two weeks. On 27lh of April07, when the case was taken up for hearing, Mr ZA Mughal, learned counsel appeared on behalf of respondents and the exparte proceedings drawn against the respondents were set aside. The petition was directed to be listed for consideration after two weeks. Thereafter, on 18th of May07, Mr ZA Mughal, learned counsel for the respondents was not present and adjournment was sought by the proxy counsel appearing on his behalf. The petition was listed on 1st of June07 but again there was no representation on behalf of respondents. This shows that the respondents are intentionally and deliberately delaying the disposal of this case, and therefore, the case was heard in the absence of respondents or their counsel on the aforesaid date. 7. The case set up by the respondents in their plaint was that the petitioner in order to grab the land of the respondents has managed a forged Will dt. 7. The case set up by the respondents in their plaint was that the petitioner in order to grab the land of the respondents has managed a forged Will dt. 22nd of March74, in his favour and has kept it secret till 20 days back. It was stated that no Will was ever executed by deceased Nazam Din in favour of the petitioner during his life time, and thus, the alleged Will is forged one. 8. Petitioner in its written statement filed before the trial court has taken a specific plea that respondents had earlier filed a suit for declaration that the Will in question is inoperative, null and void being a forged one with a consequential relief of permanent injunction restraining the petitioner from using the Will as valid one. The respondents did not file any replication to the written statement filed by the petitioner so the fact that the respondents had earlier instituted a suit and that was dismissed on the basis of the compromise entered into between the parties and the validity of the Will was accepted by the respondents has remained unchallenged. Therefore, the question in this revision petition is as to what is the effect of the compromise executed between the parties and whether the respondents can again challenge the validity of the Will which has already been upheld by way of compromise. 9. The learned trial court has taken into consideration that the earlier suit is not res-judicata as the said suit was not adjudicated on merits. These findings recorded by the learned trial court are palpably erroneous. When the parties effected a compromise and the suit is withdrawn, the provisions of Order XXIII R.I and 3 will be applicable. These provisions in so far as relevant are being reproduced below:- "Order 23 R.1 -- Withdrawal of suit or abandonment of part of claim (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) An application for leave under the proviso to sub rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is in his opinion, for the benefit of the minor or such other person. (3) Where the court is satisfied:- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute afresh suit for the subject matter of a suit or part of claim; it may, on such terms, as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. (4) Where the plaintiff- (a) abandons any suit or part of claim under sub rule (I) or (b) withdraws from a suit or part of a claim without the permission referred to in sub rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub rule (1) or to withdraw, under sub rule (3), any suit or part of a claim, without the consent of the other plaintiffs. ................ 3. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub rule (1) or to withdraw, under sub rule (3), any suit or part of a claim, without the consent of the other plaintiffs. ................ 3. Compromise of suit: Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in writing and signed by the parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there with (so far as it relates to the parties to the suit whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation-An agreement or compromise which is void or voidable under the Contract Act, Svt.1977, shall not be deemed to be lawful within the meaning of this rule." 10. A perusal of the above provisions makes it clear that after a suit is instituted, the plaintiff or any of the defendant abandons his suit or a part of claim under sub rule (1) or withdraws from the suit or a part of claim without permission referred to in sub rule (3), he shall be precluded from instituting any fresh suit in respect of the subject matter or such part of claim. Under sub rule (3), when a party withdraws his suit or abandons a part of claim, the court can grant permission to withdraw from such suit or part of such claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim if the court is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of such or part of a claim. A co-joint reading of the provisions noticed above makes it clear that after the institution of the suit, the plaintiff may as against all or any of the defendant, abandon his suit or part of such claim. Once he has abandoned his suit or part of such claim, then the second suit is maintainable only if the court has granted permission to the plaintiff to withdraw from the suit with liberty to institute a fresh one with regard to the same subject matter. Respondents in this case has not even disclosed that they had earlier instituted a suit and the same was withdrawn on the basis of a compromise. 11. Even the suit is not maintainable where a compromise decree is challenged. A bar has been created in this regard by R.3-A, which reads as under:- "3-A: Bar to suit: No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." 12. Petitioner has placed on record the written statement filed in the earlier suit, copy of the compromise and the application for withdrawal of the earlier suit. A perusal of the said application clearly shows that the respondents have not taken a permission to file a fresh suit on the same cause of action nor it is the case of respondents that there was a formal defect in the earlier suit by reason of which it was sought to be withdrawn. Rather the suit was withdrawn on the basis of the compromise. 13. For the reasons mentioned above, this revision is accepted and finding recorded on preliminary issue by the court below are reversed and it is held that the suit filed by respondents is not maintainable. Rather the suit was withdrawn on the basis of the compromise. 13. For the reasons mentioned above, this revision is accepted and finding recorded on preliminary issue by the court below are reversed and it is held that the suit filed by respondents is not maintainable. The parties are directed to appear before the learned Munsiff, Thana Mandi, for further proceedings on 30th of July07.