Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1391 (PAT)

Nand Kishore Rai v. Shakuntala Devi

2012-09-28

SAMARENDRA PRATAP SINGH

body2012
ORDER Heard learned counsel for the petitioners as well as learned counsel appearing for respondents. 2. The petitioners, who are defendants in Title Suit no.11 of 2008, have prayed for quashing the order dated 25.2.2010, passed by learned Sub-Judge-IV, Patna in Title Suit no. 11 of 2008 by which he has allowed the amendment petition dated 9.6.2008 filed on behalf of plaintiff-respondent no.1. 3. Before I take up the rival submissions of the parties for consideration, it would be relevant to notice the facts of the case in brief: 4. One Smt Shakuntala Devi, the plaintiff-respondent no.1 filed title suit no. 11 of 2008 in the court of Sub-Judge-IV, Patna against the petitioners-defendants as well as respondents-defendants 2nd set for partition of 1/4th share in the scheduled property. 5. The case of the plaintiff is that late Bipat Mahto was the common ancestor of both the parties, who had two wives. From 1st wife he had one son Deonandan Rai and from 2nd wife he had two sons Dayanand Rai and Nand Kishore Rai. Bipat Mahto died leaving behind the heirs mentioned above. Late Bipat Mahto also had two cousins namely Bilash Bhagat and Bulkan Bhagat, who died leaving behind their heirs. After the death of Bipat Mahto and his two cousins, there was partition among the sons of Bipat Mahto, Bilash Mahto and Bulkan Mahto by mutual agreement. The sons of Bipat Mahto got one joint Takhta in their 1/3rd share and similarly the sons of Bulkan Mahto and Bilash Mahto got their separate Takhta of 1/3rd share and this partition was subsequently recorded in a memorandum of partition deed dated 12.4.1979. 6. The further case of the plaintiff is that Devnandan Rai died issueless in the State of jointness with his brothers who came in possession over his share also. Dayanand Rai also died on 21.1.2004 leaving behind his two daughters namely Shakuntala Devi who is plaintiff and Reshmi Devi who is defendant no.6 in the suit. 7. The defendant nos. 1 to 5, who are petitioners in this writ application, filed their written statement and raised the issue of maintainability of the suit itself. They stated that Dayanand Rai had filed title suit no. 504 of 2003 in the court of Sub-Judge-I, Patna against his brother Nand Kishore Rai and his sons for partition of the property, which is the subject matter of this suit. They stated that Dayanand Rai had filed title suit no. 504 of 2003 in the court of Sub-Judge-I, Patna against his brother Nand Kishore Rai and his sons for partition of the property, which is the subject matter of this suit. The defendants-petitioners stated that a compromise decree was passed in the said suit on the basis of compromise petition filed on 5.4.2004. The defendants-petitioners submit that thus the instant suit cannot continue as compromise partition was already entered with father of plaintiff. 8. The plaintiff filed an amendment petition challenging the compromise decree as fraud. The trial court allowed the amendment by order dated 25.2.2010, which is challenged in this writ application by the defendants-petitioners. 9. The petitioners state that remedy before the plaintiff-respondent no.1 was to file a recall petition in the said title suit itself in view of express bar to file a fresh suit under Order XXIII Rule 3-A of C.P.C., which is quoted herein below: – Order XXIII Rule 3-A: Bar to suit. – No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. 10. Mr. Partha Sarthi, learned counsel appearing for plaintiff/respondent no.1, submits that Order XXIII Rule 3-A of the C.P.C. would not bar a person, who was not a party to the suit in preferring a separate suit for setting aside the compromise decree, which is not lawful and obtained on the basis of fraud. Learned counsel submits that plaintiff-respondent no.1 was not a party in the compromise decree and as such the bar imposed under Order XXIII Rule 3-A of C.P.C. would not be applicable in her case. Learned counsel submits that Deo Nandan Rai father of respondent no.1 died on 21.1.2004 and the compromise petition was admittedly filed on 5.4.2004. In such circumstances no compromise survived or existed in eye of law. He submitted that a compromise petition on behalf of a dead person would be no compromise and as such a fresh suit would not be hit by bar contained in Rule 3-A of Order XXIII. 11. Learned counsel submits that a person, who is not a party in the compromise petition, has an option to file a separate suit for setting aside the compromise decree. 11. Learned counsel submits that a person, who is not a party in the compromise petition, has an option to file a separate suit for setting aside the compromise decree. In support of his submission, learned counsel has relied upon decisions in case of Smt. Suraj Kumari vs. District Judge, Mirzappur and others, reported in AIR 1991 Allahabad 75; Siddalingeshwar and others vs. Virupaxgouda and others, reported in AIR 2003 Kar. 407 , particularly paragraph 14 and 15; Satyendra Kumar @ Rajeev Ranjan & Others vs. Most. Shakuntala Kumar Verma, reported in 2012(1) PLJR 437 particularly paragraph 11. 12. Mr. Dvivedi, learned senior counsel appearing on behalf of the petitioners, submits that the aforesaid decision would not be applicable in the facts of the instant case, as in all those cases, the persons, who chose to challenge the compromise decree were strangers to the family. He submits that in the instant case, the daughter has sought to challenge the compromise decree pursuant to compromise petition signed by her father in a separate suit. 13. I have heard the counsel for the parties. 14. Order XXIII Rule 3 relates to compromise of suit. Order XXIII Rule 3-A Bar a suit, to set aside a decree on the ground that the compromise on which the decree is based was not lawful. As per explanation of Order XXIII Rule 3- an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule. Order XXIII Rule 3 –B states that no agreement to compromise to be entered in a representative suit without leave of Court. The case of the respondent is that her father in any view of the matter ought to have taken leave of this Court before entering a compromise as she was his heir. 15. In the instant case, the issue is whether a fresh suit can be filed for challenging the compromise decree on the basis of compromise petition, which was filed after the death of one of the parties. It is not in dispute that Dayanand Rai, father of plaintiff-respondent no.1, died on 21.1.2004 whereas the compromise petition on his behalf was filed by the parties in that suit much after his death on 5.4.2004. Late Dayanand Rai had died leaving his daughters who were not substituted in that suit. It is not in dispute that Dayanand Rai, father of plaintiff-respondent no.1, died on 21.1.2004 whereas the compromise petition on his behalf was filed by the parties in that suit much after his death on 5.4.2004. Late Dayanand Rai had died leaving his daughters who were not substituted in that suit. The compromise, as such apart from being invalid, did not exist at all as Dayanand Rai was admittedly dead. 16. Bar to suit under Order XXIII Rule 3-A pre supposes a compromise petition, in which the parties are at least alive or claimed to be alive on the date of presentation of the compromise petition. 17. In the instant case, the person on whose behalf compromise has been filed was admittedly no more alive. The said fact would appear from the rejoinder to the amendment petition filed by the petitioner themselves, which are annexed as Annexure-5 to this writ application. When there is no existence of a person, no compromise petition can be filed on behalf of the dead person, even if he has signed the petition earlier. The compromise would at least assume existence of the person on whose behalf the same is being filed otherwise it would be no compromise at all. 18. A Division Bench of Karnataka High Court in case of Siddalingeshwar and others (supra) held that a bar is imposed to challenge a compromise decree in a separate suit, as a party to a compromise is entitled to challenge it either by way of an appeal under Order 43 Rule 1 A or a recall petition in the very suit itself. The Karnataka High Court further observed that a stranger to the suit can file a separate suit challenging the compromise decree. 19. The Allahabad High Court in case of Smt. Suraj Kumari (supra) in paragraph 22 observed that Order 23 Rule 3-A would not be applicable to stranger to the compromise decree. Recently a learned single judge of this court in case of Satyendra Kumar @ Rajeev Ranjan & Ors (supra) observed in paragraph 11 thereof that a person who is not a party to the suit in which a compromise decree was passed, can maintain a suit for seeking declaration that the said compromise decree would not be binding on him. 20. 20. In view of the aforesaid discussions, I summarize the conclusion as follows: – (a) A compromise petition filed on behalf of a dead person which is not in dispute, would not be a compromise in the eye of law and would not attract the bar provided under Order XXIII Rule 3-A of C.P.C. For attracting Order XXIII Rule 3-A of C.P.C. existence of a person entering into compromise is a pre-condition. (b) A stranger to a party / a person, who is not privy to the compromise petition, has options either to file a recall petition in the said title suit or to file a separate suit for challenging the said compromise decree. 21. Thus, I do not find any fault in the impugned order allowing the amendment petition. Any observation made by this Court in course of deciding the issue would in no way prejudice the case of either parties. 22. This application stands disposed of.