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2011 DIGILAW 2310 (HP)

Ballabh Ram v. Nar Singh

2011-07-12

DEV DARSHAN SUD

body2011
JUDGMENT : Dev Darshan Sud, J. This appeal challenges the order passed by the learned Additional District Judge, Mandi Camp at Karsog in review petition instituted by the respondents Nar Singh Dass and Jamna Dass on 1.10.2008 allowing the review petition and setting aside the compromise decree dated 7.12.2010. 2. Brief facts necessary for consideration are that the suit out of which this appeal arises was instituted by Ballabh Ram against the defendants for declaration to the effect that the suit property is coparcenary property of the plaintiffs Ballabh Ram and Jagat Ram, defendant No.1-Tej Ram and proforma defendants No. 8 to 10 before the trial Court. The plaint was returned to the plaintiff by the learned trial Court holding that the Court has no territorial jurisdiction to try the suit. Appeal was preferred against this order of the Sub Judge, Ist Class, Karsog by Ballabh Ram. The appeal was fixed for a number of dates. It remained pending from 12.4.2002 till it was disposed of in terms of a compromise Ext.CA which order was passed on 7.12.2005. There has been no decision on merits by the learned appellate Court. In the meantime, the respondents Nar Singh Dass and Jamna Dass preferred RSA. No. 569 of 2007 against this order challenging it on various grounds. It is a matter of record that the appeal was pending and on 7.11.2005 it was stated by the learned counsel for the parties that compromise Ext. CA had been entered into between them and the appeal was accordingly disposed of in terms of the compromise of which the respondents Nar Singh and Jamna Dass were not parties/signatories. Against this order, RSA No. 569 of 2007 was preferred on 18th September, 2006, which was admittedly time barred and was dismissed in default on 14th December, 2007. 3. Application for review of this order recording compromise was preferred on 7.11.2007 before the learned Additional District Judge. The application avers that the plaintiff had sought relief of declaration to the effect that the suit property was the coparcenary property and the General Power of Attorney of late Jagat Ram in favour of defendant No.1 is void. It seems that case was agitated before the appellate Court which vide its order dated 3.4.2002, remanded the case with the direction to re-frame issue No.9 with respect to determination for jurisdiction and court fee required to be paid. It seems that case was agitated before the appellate Court which vide its order dated 3.4.2002, remanded the case with the direction to re-frame issue No.9 with respect to determination for jurisdiction and court fee required to be paid. During the pendency of the appeal, appellant Ballabh Ram and respondents No. 1 to 8 entered into a compromise Ext.CA and on that basis the suit was decreed in terms of what has been stated therein. 4. Respondents Nar Singh and Jamna Dass appealed against this compromise decree stating that they were not parties etc. which appeal was dismissed in default by this Court. Review was filed before the appellate Court challenging the compromise being in violation of the provisions of Order 23 Rule 3 C.P.C and its non-compliance; and the compromise was not signed by the review petitioners who had not entered into compromise but had been executed by the other parties in connivance with each other. The review petitioners were the bona-fide purchasers and it was in these circumstances that the review petition was filed. This application has been allowed by the learned appellate Court recalling its earlier order and restoring the appeal to its original number which appeal was again re-considered on merit and the appeal preferred by appellant- Ballabh Ram and others challenging the return of the plaint by the learned trial Court has been dismissed by the order of the learned appellate Court dated 7.1.2011. 5. A number of grounds have been urged by learned counsel appearing for the appellant on the legality of the order in review passed by the learned appellate Court. What requires to be noticed at this stage is that the compromise has been signed by the appellant and the other respondents excluding the respondents Nar Singh Dass and Jamna Dass who claimed to be the bona-fide purchasers and it is their rights also which have been adversely affected. 6. Statement of Ballabh Ram was recorded by the learned appellate Court on 7.11.2005 who states: "Bayan keya kee hamara yanni appellant wa pratayarthi 1 wa 8 kaa rajinama ho gaya hay. Rajinama Ext.CA shun leeya hay jo sahai hay. Ishkay anusar fansla appeal keeya jai." 7. To similar effect are the statements of Sh.Tej Ram and Smt.Neema Devi wife of Tej Ram on her behalf and on behalf of Bodh Raj, Rakesh and Ghanshyam. Rajinama Ext.CA shun leeya hay jo sahai hay. Ishkay anusar fansla appeal keeya jai." 7. To similar effect are the statements of Sh.Tej Ram and Smt.Neema Devi wife of Tej Ram on her behalf and on behalf of Bodh Raj, Rakesh and Ghanshyam. Bhim Singh, Tek Singh and Dila Ram are the sons of Ballabh Ram. There is nothing on the record to show that the statements of the contesting respondents have been recorded. It is in this light that the appeal requires to be considered. 8. Having noted the undisputed facts, namely, the return of the plaint, compromise not having been entered into by Nar Singh and Jamna Dass, no statement having been made on their behalf on the record and ultimately the rejection of the appeal by the appellate Court, this submission made by the learned counsel are to be considered. 9. Learned counsel for the appellant submits that the learned Court was wrong in entertaining the review petition as there was no jurisdiction vested in it by law to have set aside the compromise decree. Learned counsel submits that the appeal was barred by time and in this event, review petition was barred by time, the second appeal having been dismissed, as noticed, there was no jurisdiction vested in the appellate Court to have taken cognisance of the case for review. 10. Learned senior counsel appearing for the respondents submits that there is an error apparent on the face of the record which is that the two respondents as noticed above were never signatories to the compromise, never accepted the compromise, never acted upon it, it was in contravention of the provisions of Order 23 of the Code of Civil Procedure and at best it could determine the rights of the parties to the compromise itself but could not affect their rights as they had not consented/accepted the settlement inter se between them. 11. Learned senior counsel appearing for the appellant places reliance on the judgment of the Supreme Court in Authorized Officer, Indian Overseas Bank and another v. Ashok Saw Mill, (2009) 8 SCC 366 , Pandit Dhana Mali v. Bhimabai (dead) through LRs, (2007) 15 SCC 434 and Ram Lakhan v. Presiding Officer and others, (2001) 3 SCC 161 to urge that review was not maintainable. 12. 12. Learned senior counsel also refers to the decision of this Court in CMP(M) No. 790 of 2010 in Civil Review No. 98 of 2010 on this issue. Learned counsel for the respondents places reliance on the decision of the Supreme Court in Kunhayammed and others v. State of Kerala and another, (2000) 6 SCC 359 , to urge that the doctrine of merger would not apply for the reason that an appeal under Section 96 (3) of the Code of Civil Procedure was not maintainable against a compromise decree. The second point urged by the learned counsel is that these respondents were not parties to the original compromise, no decree could have been passed against their interest. The third point urged is that there was no suit pending before the learned appellate Court on the date when the appeal was disposed of in terms of the compromise Ext. CA, since the plaint had been returned to the plaintiff for being re-filed in a court of competent jurisdiction and in this event, unless and until the plaint was taken on the record, the suit registered as original suit, no effective decree could have been passed. Learned counsel also submits that what the decree seeks to enforce is a nullity, it is in the nature of a fraud having been practiced with these respondents when it seeks to bind them on a statement which has never been made by them and which fact is substantiated from the record. Reliance has been placed by the learned senior counsel in S.P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs and others (1994)1 SCC 1 , United India Insurance Co. Ltd. v. Rajendra Singh and others, AIR 2000 SC 1165 , N. Khosla v. Rajlamshmi (dead)and others, (2006) 3 SCC 605 and Hamza Haji v. State of Kerala and another (2006) 7 SCC 416. 13. Ltd. v. Rajendra Singh and others, AIR 2000 SC 1165 , N. Khosla v. Rajlamshmi (dead)and others, (2006) 3 SCC 605 and Hamza Haji v. State of Kerala and another (2006) 7 SCC 416. 13. Adverting to the submissions made on behalf of the learned counsel appearing for the appellant that the review petition was not maintainable, on the precedent cited, I hold that there would be no bar to the maintainability of the review petition for the reason that an appeal under Section 96 (3) of the Code of Civil Procedure was not maintainable against a compromise decree and secondly the error committed by the learned appellate Court in disposing of the appeal in terms of the compromise to which the respondents Nar Singh and Jamna Dass have never party, could only be corrected by that Court and thirdly the compromise itself was not in accordance with Order 23 Rule 3 requiring as the parties or the counsel to be signatories to the compromise. 14. The other points urged that fraud has been practiced by the respondents, all that I need say is that it was a compromise inter se between those of the appellants and respondents who had executed that deed. Even though, it did not revive the suit before the learned Appellate Court but could not be used for the purposes of determining the rights of those who were not parties to Ext. CA. There is thus no merit in this appeal which is accordingly dismissed.