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2007 DIGILAW 479 (PAT)

Ram Bilash Singh v. Kamta Sharma, Kamta Singh

2007-03-07

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. Plaintiffs-petitioners, aggrieved by the order dated 3.9.2005 passed by the Subordinate Judge, III, Aurangabad in Misc. Case No. 19 of 2001 registered in T.S. No. 36 of 1996 have preferred this application. 2. Plaintiff Nos. 2 and 3-petitioner Nos. 2 and 3, herein as also the defendants filed application on 7.5.1997 for decreeing Title Suit No. 36 of 1996 in terms of the compromise. Plaintiff No. 1-Petitioner No. 1, herein filed application under Order I, Rule 10 and Sec. 151 of the Code of Civil Procedure for transposing Plaintiff Nos. 2 and 3 as Defendant Nos. 9 and 10 in the suit, inter alia, alleging that they have gone in collusion with the defendants and filed the collusive compromise petition. 3. Thereafter, Plaintiff Nos. 2 and 3 also filed application dated 14.9.2001 for rejecting the compromise petition dated 7.5.1997. Said application was filed under Order 23 Rule 3 and Sec. 151 of the Code of Civil Procedure, which was registered as Misc. Case No. 19 of 2001. 4. By reason of the impugned order, said application has been rejected and the compromise petition filed accepted, inter alia on the ground that the application filed on 14.9.2001 is not maintainable, having been filed after five years of the filing of the compromise petition on 7.5.1997. 5. Mr. Sharma, Senior Advocate, appearing on behalf of the petitioners, contends that although an application for compromise was filed on 7.5.1997 and before psssing of any order on the said petition, Plaintiff Nos. 2 and 3 filed application for rejecting the compromise petition, but the court below on erroneous assumption that said application has been filed after five years of the compromise of the suit, rejected the same. He emphasises that no order on the compromise petition filed on 7.5.1997 was passed earlier and from the perusal of the impugned order itself, it is evident that the compromise petition filed was accepted on the same date on which the impugned order was passed. 6. Mr. Dharmesh Kumar, learned Counsel appearing on behalf of the Defendants-Opposite Party Nos. 1 to 8, however, contends that when an application for rejecting the compromise petition was filed, the Court below rightly registered the same as Misc. Case No. 19 of 2001 and the same is permissible under the Civil Courts Rules. He submits that the Court below rightly rejected the application filed by Plaintiff Nos. 1 to 8, however, contends that when an application for rejecting the compromise petition was filed, the Court below rightly registered the same as Misc. Case No. 19 of 2001 and the same is permissible under the Civil Courts Rules. He submits that the Court below rightly rejected the application filed by Plaintiff Nos. 2 and 3 for rejecting the compromise petition as not mainainable. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Banwari Lal vs. Smt. Chando Devi & Anr. 1993 PLJR 21 (SC). 7. Having appreciated the rival submission, I find substance in the submission of Mr. Sharma. The very assumption of the Court below that the suit has been compromised, is absolutely erroneous. In my opinion, filing of compromise petition itself would not amount to compromise of the suit. Even before any order is passed on the said compromise petition, Plaintiff Nos. 2 and 3 filed application for rejecting the compromise petition. In such a situation, the Court below holding that the said application is not maintainable, having been preferred after five years of the compromise, is absolutely illegal. He shall now proceed to pass order on the petition of compromise and the objection petition in accordance with law. 8. In the result, this application is allowed, order dated 3.9.2005 passed by the Subordinate Judge, III, Aurangabad in Misc. Case No. 19 of 2001 arising in T.S. No. 36 of 1996, is set aside with the direction aforeaid. 9. No cost.