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2009 DIGILAW 83 (JK)

Bashir Ahmed Bhat v. Zeba

2009-02-26

MOHAMMAD YAQOOB MIR

body2009
1. Order dated 31.12.2001 passed by learned Munsiff, Anantnag, is projected to have caused failure of justice, and also projected to have been passed in exercise of jurisdiction not vested with the learned Munsiff. 2. There has been no representation on behalf of the respondent from 06.09.2006, therefore, petition is heard in absence of the respondent who is set in ex-parte. 3. Application styled under Section 151 CPC has been disposed of whereunder order recording compromise has been recalled and decree passed thereon has been set aside. 4. Petitioners (plaintiffs) in fact filed suit for declaration to the effect that they are in possession as owners of tin roofed house including two shops located in ground floor, single storey tin roofed shed, including Cow Shed, Garage, Latrine alongwith connected rights including land measuring 2 kanals and 14 marlas covered by survey no. 127, 128, 129, 131, 132 situated at Naid Gund Baba Khaleef Kulgam. 5. Parties have entered into compromise, as such, have presented the deed of compromise before the Trial Court on 21.06.2001 in support thereof, statement of the petitioners (plaintiffs) and the defendant has been recorded on proper identification. Finally, on 10.08.2001, when defendant did not appear, learned trial court on perusal of file noticing the compromise and statement in support recorded and also noticing that the interests of the minor plaintiff no.3 are safeguarded has passed the decree based on the compromise in favour of the petitioners (plaintiffs). Decree sheet has also been prepared as is available on the subordinate record. Subsequently, on 11.08.2001, application through counsel has been filed on behalf of respondent (defendant) with the prayer "that the suit may be dismissed". Said application has been resisted by the petitioners but however, learned Munsiff has passed the order impugned whereunder order regarding compromise has been recalled and decree set aside. 6. Learned counsel for the petitioners first contended that the application was not maintainable as the contents of the application are such which are not covered by any provision of law. For appreciating this contention, contents of the application are required to be noticed precisely. In the application, it has been contended that suit land including the house, shops, Cow Shed, were not gifted in favour of the petitioners(plaintiffs) instead sale has taken place. Which fact is supported by the agreement to sell. For appreciating this contention, contents of the application are required to be noticed precisely. In the application, it has been contended that suit land including the house, shops, Cow Shed, were not gifted in favour of the petitioners(plaintiffs) instead sale has taken place. Which fact is supported by the agreement to sell. Suit was earlier dismissed but respondent (defendant) being a lady, therefore, petitioners have cheated her and due to her illiteracy have obtained the compromise deed. Therefore, on acceptance of application, suit may be dismissed. 7. It is quite clear that suit has been adjusted in terms of order 23 CPC and decree has followed. Proper course for challenging the decree was to file appeal as permissible under Section 96 CPC or under order 43 Sub Rule 2 of Rule 1-A CPC or application under proviso to Rule 3 of order 23, it was open for the respondent (defendant) to challenge the decree on the ground that the compromise should or should not have been recorded. 8. The application filed by defendant through her counsel is totally casual in its contents as the recording of the compromise is not denied. All what is claimed is that she had not gifted suit property instead had sold the suit property to the petitioners (plaintiffs). 9. The parties have entered into compromise, decree has followed. There is no question to resile from same unless cogent grounds exist for throwing challenge as permissible by way of appeal under Section 96 or under order 43 Sub Rule 2 of Rule 1-A CPC. Same has not been done. 10. Learned trial court invoking the powers under Section 151 CPC has tried to justify that there should have been proper sale deed instead of compromise decree but has lost sight of the fact that parties were litigating. Suit was instituted in the year 2000 finally good sense has prevailed, they have entered into compromise in support of which their statement stands recorded on 21.06.2001. If the respondent had any objection, at least she should not have slept over the matter upto 10.08.2006 i.e., the day on which final judgment was passed. 11. Resort can be had to Section 151 CPC only when other remedial measures are not available. When the remedy, if at all, required to be resorted to was available as said above, then there was no question to exercise powers under Section 151, CPC. 11. Resort can be had to Section 151 CPC only when other remedial measures are not available. When the remedy, if at all, required to be resorted to was available as said above, then there was no question to exercise powers under Section 151, CPC. 12. Since dispute in between the parties has terminated in terms of the compromise, there was no requirement to reopen it, that too by invoking powers under Section 151 CPC. It shall be quite apt to quote para 13 of the judgment reported in AIR 1993 SC 1339 as relied by the division bench of this court in the judgment Shri Yog Raj vs Shri Kuldeep Raj Gupta, 2000 SLJ page 347 which reads as under: - "When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise has to decide the question whether an adjustment or satisfaction has been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act., "shall not be deemed to be lawful within the meaning of said rule in view of the proviso read with explanation, a Court which has entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act, Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. Can file a petition under proviso to Rule-3 of Order 23 or an appeal under Section 96(1) of the Code, in which he can question the validity of the compromise in view of Rule 1-A of Order 43 of the Code." 13. In the case in hand, in the application the fraud has not been pleaded instead it has been pleaded that suit property was sold not gifted. 14. Application is not covered by Proviso to Rule 3 of Order 23 CPC. In the case in hand, in the application the fraud has not been pleaded instead it has been pleaded that suit property was sold not gifted. 14. Application is not covered by Proviso to Rule 3 of Order 23 CPC. The only remedy available was to file appeal as permissible under Section 96 (1) or in Order 43 Sub Rule 2 of Rule 1-A of CPC. 15. The most appropriate remedy in the back ground of the contents of the application, was to file appeal under sub-rule 2 of Rule 1-A of order 43 CPC which reads as under: - "In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not, have been recorded." 16. The learned Trial court has acted in exercise of its jurisdiction illegally and with material irregularity which is to cause failure of justice. Therefore, order impugned is set aside. The application as a necessary corollary filed by the respondent (defendant) is dismissed. The revision petition accordingly succeeds. Copy of the order alongwith trial court record be sent back. Disposed of as above.