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2010 DIGILAW 596 (PAT)

Pratap Mistry v. Sitaram Mistry

2010-04-02

MIHIR KUMAR JHA

body2010
JUDGEMENT 1. Heard the parties. 2. Both these civil revision applications arise out of the same order dated 22-9-2000 passed by the Munsif-III, Gaya in Title Suit No. 16 of 1999 wherein part of the aforesaid order has been impugned by the plaintiff in C. R. No. 2362 of 2000 to the extent the suit to be not maintainable as for the relief No. III, namely, declaration that the compromise decree passed in Title Suit No. 63 of 1963 is forged, fabricated and collusive. In the second civil revision application (C. R. No. 177 of 2001) the defendants first set has assailed the same order to the extent of holding the suit to be maintainable as with regard to relief Nos. I and II. 3. Facts which are not in dispute is that the plaintiffs, Pratap Mistry, Nand Lal Mistry, Kedar Mistry, Dwarika Mistry, Gopal Mistry, Ram Chandra Mistry and Arjun Mistry had filed Title Suit No. 16 of 1999 mainly for three relief namely : (I) For that the title and possession of the plaintiffs be declared and confirmed over the suit land; (II) For that if the plaintiffs be found dispossessed over the suit land during the pendency of this suit, the possession of the plaintiffs be restored through the processes of the Court; (III) For that if the defendant Nos. 1 and 2 produced any compromise decree of Title Suit No. 63 of 1963 that be declared forged, fabricated, collusive and be set aside. 4. From a bare perusal of the averments made in the plaint it would thus be clear that while the plaintiffs had sought declaration of their right, title and possession over the suit land, in fact, for grant of such relief the compromise decree of Title Suit No. 63 of 1963 was also sought to be assailed. 5. In view of the amendment made in the year 1976 under Order 23 by incorporating a new provision under O. 23, R. 3 A of the C. P. C. no suit could, however, lie to set aside the decree on the ground that the compromise on which decree is based was not lawful. 6. There is now no difficulty in also finding out as to what could be the fate of unlawful compromise. 6. There is now no difficulty in also finding out as to what could be the fate of unlawful compromise. Under the explanation of O. 23, R. 3 of the C. P. C. it has been clearly provided that a compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful. Thus, on a conjoint reading of the plaint and the provisions under O. 23, R. 3A of the C. P. C. it would appear that the main relief being sought was relief No. III, namely, declaration of the compromise decree of Title Suit No. 63 of 1963 to be forged, fabricated and collusive which in the opinion of this Court was clearly barred by the provisions of 0.23, R. 3A of the C.P.C. 7. While it is true that the plaintiffs have sought to give an explanation that the cause of action for filing the suit seeking the daclaration of right, title and possession with regard to the suit land had accrued to them on 30-8-1998 when it is alleged that the defendant Nos. 1 and 2 began to dig earth for raising a wall in the northern side of the suit land which is said to be in the possession of plaintiff No. 1 and the defendants had taken plea with regard to entry of the suit land being recorded in their names in the revisional survey khata. Crux of the matter however precipitates from paragraph 11 of the plaint where the plaintiffs are said to have acquired knowledge on 30-8-1998 from the version of the defendant Nos. 1 and 2 that there was a compromise decree in Title Suit No. 63 of 1963 on the basis of which defendants were claiming right over the suit land. Paragraph- 11 of the plaint therefore would unfold the real purpose of the suit and would also expose that the relief Nos. I and II pertaining to declaration of right, title and interest was totally dependent on Relief No. III seeking declaration that the compromise decree in Title Suit No. 63 of 1963 was forged, fabricated and collusive and thus be set aside. Paragraph-11 of the plaint reads as follows "That the defendant No. 1 and 2 also said about the decree of the Title Suit No. 63 of 1963 and on the basis of compromise in the said Title Suit. Paragraph-11 of the plaint reads as follows "That the defendant No. 1 and 2 also said about the decree of the Title Suit No. 63 of 1963 and on the basis of compromise in the said Title Suit. It is pertinent to mention here that all the plaintiffs and defendant Nos. 3 to 5 were living far away from the village and no notice or summons ever been sent or received by them nor any knowledge was given whereas their father were old enough and not able to perform his normal daily duty, hence the question of compromise as alleged by the defendant Nos. 1 and 2 does not arise. Budhu Mistri or Hari Mistri whenever sold his land sold through registered sale deed and not through in any other means. Moreover their sons were meeting all expenses of their maintenances." 8. From a perusal of the plaint, therefore, specially its paragraph 11 it would be manifest that the suit was out and out a suit for setting aside the compromise decree which as stated above, was not maintainable and ought to have been disposed of by rejecting the plaint under the provisions of O. VII, R. 11(d) of the C. P. C. It is not and in fact cannot be suggested that the provisions of Order 23, Rule 3-A of the C.P.C. is not a law or that the statement made in the plaint with the relief of seeking the declaration of compromise decree to be forged, fabricated and collusive and not binding on the plaintiffs, consequently relief of its being set aside did not enjoin upon the Court to reject the plaint at the very threshold. 9. The view taken by the Court below in the impugned order that the suit was barred only in respect of Relief No. III pertaining to compromise decree, in fact, amounts to examining the whole issue a very casual and mechanical approach especially when it is found that the moment the defendants took a plea on there being compromise decree, which they must take and in fact have taken in their written statement and also before this Court, that by itself would be sufficient to finish the case and claim of the plaintiffs with regard to their declaration of right, title and interest over the suit land. Apparently, for declaration of right, title, and interest of plaintiff in the suit land, the compromise decree of Title Suit No. 63 of 1963 has to be set aside and therefore the court below ought to have rejected the plaint in view of the application filed by the defendants 1st set on 29-5-2000 which as stated above has been partly allowed and partly rejected. The Court below ought to have taken into consideration that even after rejection of the plaint the petitioners were not remediless, inasmuch as, there is now specific provision to question the compromise decree on the ground of fraud and collusion etc. before the same Court which had passed such decree. As a matter of fact, if the compromise decree at the instance of the plaintiffs for the reasons mentioned in paragraph No. 11 is assailed before the same Court which has passed the decree in Title Suit No. 63 of 1963 upon consideration is allowed by holding the compromise decree to be bad and fit to be set aside and the plaintiff will automatically become entitled to the right, title and possession of the suit land. 10. The view which I have taken is totally supported from the judgment of the Apex Court in the case of Banwari Lal v. Smt. Chando Devi through L. R. and Anr.) reported in AIR 1993 SC 1139 and the judgment of this Court in the case of Most.. Radhika Devi v. Ramdeo Tiwary reported in 2000 (2) PLJR 534 and also in the case of Sheoji Prasad v. Mohan Prasad, reported in 1996 (1) PLJR 877 as well as in the case of Jai Mangal Kumar & Anr. v. Dinesh Yadav and Anr. reported in 2005 (1) PLJR page 1 and in the case of Gurucharan Singh v. Mahtam Singh & Anr. reported in 2006 (3) PLJR 345. 11. Mr. Lalit Kishore, learned Senior Counsel appearing on behalf of the plaintiffs, in fact, very fairly submitted that the remedy for the plaintiff for setting aside the compromise decree even on the ground of fraud or collusion would be by filing an appeal as was held by the Division Bench of this Court in the case of Lagandeo Singh v. Satyadeo Singh & Ors. reported in 1992 (2) PLJR 184 : ( AIR 1992 Pat 153 ). reported in 1992 (2) PLJR 184 : ( AIR 1992 Pat 153 ). He, however, had tried to make a distinction that where minors interest was not represented in the compromise decree as was clearly stated by the plaintiffs in paragraph 11 of the plaint a suit for setting aside such compromise decree would be maintainable in terms of the Order XXXIII, R. 7 of the C.P.C. 12. In the opinion of this Court, the plea as to whether minors interest were properly represented in the Title Suit No. 63 of 1963 and whether on account of their (minors) not being properly represented would render the compromise decree to be void or voidable in any event would lead the plea that the compromise on which decree was passed was not lawful. The scope of the expression not lawful occurred in the O. XXIII, R. 3A of the C. P. C. in fact appears to be of wider import than use of similar words in the expression of O. XXIII, R. 3 of the C. P. C. Plain meaning of the rule under O. XXIII, R. 3A of the I. P. C. is that a decree can be set aside on the ground that apart from the compromise on which such decree is passed was not lawful, not only on the ground contained in the Contract Act, but also, otherwise such as want of authority to make the compromise. As a matter of fact, this rule has to be read together or in the light of other amendments carried out in the Amendment Act 1976. As a matter of fact, this rule has to be read together or in the light of other amendments carried out in the Amendment Act 1976. It has to be found out that Section 96(3) of the C. P. C. is bar to an appeal against the consent decree but before the Amendment Act 1976 decree passed against the order refusing to record compromise was available under O. XL, R. l(m) of the C. P. C, but the legislature, however, repealed of Rule l(m) of O. XLI and thereby doing away altogether with the consent of an appeal against the order of refusal to record compromise under O. 23, R. 3 of the C. P. C. Having done so the legislature has added a new rule, Rule 1(a) under O. XLIII to sub-rule II of the C. P. C. wherein it has been provided that if an order is made against a party and thereupon any judgment is pronounced against such party and the decree is drawn upon against which a party files an appeal and contends that such order should not have been made and the judgment should not have been pronounced after recording or refusing to record compromise, it would not be open to the appellant to challenge the decree on the ground that the compromise should not have been recorded. These amendment if read together would show that the intention of Legislature was to a limit right of appeal against the compromise decree and the only remedy against a compromise decree would be under O. XXIII, Rule 3(a), C. P. C. 13. That being the position in law, this Court will have no hesitation in holding that the suit filed by the plaintiff being basically one for declaring compromise decree to be forged, fabricated and collusive with a consequential prayer of its being set aside was not maintainable and as such the Court below has committed material irregularity as also jurisdictional error in only exercising its power under O. XXIII, R. 3A of the C. P. C. by holding that the suit as in respect of Relief No. III i.e., compromise decree was not maintainable. The court below, in fact, ought to have also exercised its power under O. VII, Rule 11(d) of the C. P. C. and ought to have rejected the plaint as a whole and its approach in holding that the suit was maintainable as against Relief Nos. I and II, i.e., declaration of right, title, interest and recovery of possession of the suit land, would amount to a half hearted approach specially when it is found that the relief of declaration right, title and interest in the suit land as well as recovery of possession of the suit land cannot be granted to the plaintiffs unless the compromise decree in Title Suit No. 63 of 1963 is set aside. 14. To that extent Mr. P. K. Verma, learned counsel appearing on behalf of the petitioner seems to be correct in placing reliance on the judgment of the Apex Court in the case of N. V. Srinivasa Murthy & Ors. v. Mariyamma (dead) by proposed L. Rs. & Ors. reported in 2006 (1) PLJR (SC) Page 1 : ( AIR 2005 SC 2897 ), which has relied on the earlier judgment of the Apex Court in the case of T. Arvindam v. T. V. Satyapal reported in 1977 (4) SCC 467 : ( AIR 1977 SC 2421 ), while laying down a law that the trial Court must remember that if on a meaningful no formal reading of the plaint it is discovered to be manifestly vexatious and meritless in the sense of not disclosing a clear right to sue, it should exercise its power under O. VII, R. 11 of the C. P. C. taking care to see that the ground mentioned therein is fulfilled. In the opinion of this Court, only because the plaintiff had cleverly drafted the plaint to give a look or impression of being a title suit seeking declaration of right, title and possession over the suit land, with a disguised main relief of setting aside compromise decree, it was the duty of the court below to nip it in the bud at the first hearing by examining the averments of the plaint in the light of the prayer in a coherent manner. The court below by applying the provisions of O. VII, R. 11 of the C. P. C. is required to ensure that a frivolous suit is rejected at the very outset by rejecting the plaint and when that was exactly prayed by the defendants in their application dated 29-5-2000 invoking powers of the Court below both under Order VII, Rule 11(d) of the C. P. C. and also under O. XXIII, R. 3A of the C. P. C, it ought to have held that the suit being primarily for setting aside the compromise decree in the Title Suit No. 63 of 1963 was not maintainable as a whole. 15. In the result, the impugned order to the extent it has been held that the suit in respect of Relief Nos. I and II is maintainable is hereby set aside and the defendants C. R. No. 177 of 2001 is accordingly allowed. 16. As a corollary to the aforementioned conclusion, Civil revision filed by the plaintiffs (C. R. No. 2362 of 2000) is dismissed. Consequently the Title Suit No. 16 of 1999 would stand dismissed without prejudice to the rights of plaintiff-petitioner to file an application under O. XXIII, Rules 3A for setting aside the compromise decree in Title Suit No. 63 of 2003. 17. Both the Civil Revisions are accordingly disposed in the aforementioned terms. However, there will be no order as to costs.