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2009 DIGILAW 509 (JK)

Haleema Begum v. Ab. Hamid Beigh

2009-10-26

J.P.SINGH

body2009
1. Haleema Begum, the petitioner-defendant has filed this Civil Revision questioning City Judge, Srinagars order of March 16, 2009 whereby, deferring decision on her application to dispose of the respondents suit in terms of the Compromise, the learned Subordinate Judge directed her to incorporate the plea of Adjustment of the suit in terms of the Compromise, in the proposed amended Written Statement, proposing to raise issue, in regard thereto, and decide it, along with other issues after the parties had led evidence in the case. 2. I have considered the submissions of learned counsel for the parties and perused the records. Perusal of the trial Court records reveals the petitioner to have filed an application under Order 23 Rule 3 C.P.C for final disposal of the suit, on the basis of Composition Deed of July 28, 2006 additionally seeking direction to the plaintiff to produce the original Compromise Deed in the Court, or for permission to the petitioner to prove the copy of the Composition Deed. 3. The plaintiff-respondent had opposed petitioners application only on the ground of its maintainability as nothing was indicated in the Objections filed thereto about the execution or otherwise of the Compromise Deed. 4. In these circumstances, rather than adopting the course of directing the petitioner-defendant to urge the plea of respondents suit having been Compromised, in his proposed amended Written Statement, for its later adjudication, along with other issues, arising in the case, the trial Court was required to follow the procedure prescribed under Order 23 Rule 3 of the Code of Civil Procedure, 1977, by permitting the petitioner-defendant to prove to its satisfaction that the suit had been adjusted wholly or in part by any lawful agreement and if so satisfied, as required under Order 23 Rule 3, to pass orders contemplated by the aforesaid Rule. 5. In view of the Objections raised by the plaintiff to the petitioner-defendants application, the provisions of the proviso appended to Rule 3 of Order 23, were required to be adhered to, in dealing with the application and deciding the questions raised by the respondent-plaintiff. 6. 5. In view of the Objections raised by the plaintiff to the petitioner-defendants application, the provisions of the proviso appended to Rule 3 of Order 23, were required to be adhered to, in dealing with the application and deciding the questions raised by the respondent-plaintiff. 6. The trial Court was therefore, in the circumstances of the case, required to deal with the petitioners application in terms of Order 23 Rule 3 of the Code and not defer the issue for being taken up along with the suit, in that, question of dealing with the suit, would arise only, if the plea projected by the petitioner for disposal of the suit on the basis of Composition Deed, was not either proved to the satisfaction of the Court or the Compromise Deed, was otherwise found to be void or voidable under the Contract Act Svt. 1977. 7. The trial Court has, thus, erred in not complying with the provisions of Order 23 Rule 3 CPC in refusing to consider the petitioners application and decide it finally in terms of order 23 Rule 3 of the Code. 8. For all what has been said above, this Civil Revision therefore, succeeds and is accordingly allowed, setting aside the learned City Judge, Srinagars order of March 16, 2009. The trial Court is directed to decide the petitioners application in accordance with law.