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2012 DIGILAW 1568 (PAT)

Niranjan Prasad v. Dina Nath Prasad Raut

2012-11-23

JYOTI SARAN

body2012
ORDER Heard Mr. Mahesh Narayan Parbat, learned counsel for the petitioners. 2. This application under Article 227 of the Constitution of India has been filed questioning the order dated 4.7.2009 passed by learned Sub Judge VIII, Saran at Chapra in Misc. Case No. 90 of 2008 whereby the learned Court below has been pleased to reject the application filed by the opposite parties 2nd set-petitioners questioning the maintainability of the Miscellaneous Case on grounds of jurisdiction as also on grounds of limitation. 3. The learned Court below while holding that the issue of limitation shall be considered after evaluation of the evidence led by both sides, has by the same order held the Miscellaneous Case maintainable. 4. Mr. Parbat, learned counsel for the petitioners has questioned the impugned order on grounds that the issue of limitation ought to have been settled at the first instance and if the Miscellaneous Case was found to be barred by limitation, there was no occasion for the learned Court below to force the opposite party to undergo the rigours of the trial. 5. In so far as the issue of limitation is concerned, perusal of the order impugned manifests that the same has not been rejected rather the consideration of the objection has been postponed by the learned trial Court to be considered after evaluation of evidence. The view of the learned trial Court finds support from the judicial pronouncement of the Supreme Court reported in 2006(3) PLJR 277(SC) (Gunwantbhai Mulchand Shah Vs. Anto Elis Farel & Ors.) and thus does not call for any interference. 6. This brings us to the consideration of the objection regarding the maintainability of the case and the jurisdiction of the Court below to proceed with the Miscellaneous Case. 7. Mr. Parbat, questioning the Miscellaneous Case submits that in view of the Division Bench pronouncement of this Court reported in 2006(3) PLJR 345 (Guru Charan Singh & Ors. Vs. Mahatam Singh & Anr.), though a party to a compromise has a remedy by way of an appeal under Section 96(3) of the Code of Civil Procedure, certainly a Miscellaneous Case is not maintainable. 8. Mr. Vs. Mahatam Singh & Anr.), though a party to a compromise has a remedy by way of an appeal under Section 96(3) of the Code of Civil Procedure, certainly a Miscellaneous Case is not maintainable. 8. Mr. Parbat, contends that even if a Miscellaneous Case is maintainable at the instance of a party to a compromise inter alia on grounds of the compromise being recorded by practicing fraud on the Court by the party concerned, under the provisions of Section 151 of the Code of Civil Procedure, the said provision is not applicable to the petitioners who have questioned the decree on other grounds. 9. The Miscellaneous Case has been filed under the provisions of the proviso to Order 23 Rule 3 of the Code and a copy of the application is placed at Annexure-3 to the proceedings. Thus the said objection of Mr. Parbat does not hold substance. Even otherwise the issue whether or not a forum of Miscellaneous Case is available to a party to a compromise, stands concluded by a Bench decision of this Court reported in 2010 (1)PLJR 560 (Smt. Prabhawati Sinha Vs. Heera Rai). A Bench of this Court considering the judgments on the issue including the Division Bench judgment rendered in the case of Guru Charan Singh relied upon by Mr. Parbat, has proceeded to hold in paragraph 19 as follows:– “19. In view of the aforesaid, I also respectfully follow the law laid down by the Apex Court and this Court, as discussed above, and hold that Title Suit No. 377/2005 filed for setting aside the compromise decree passed in Title Suit No. 140/2005 was not maintainable. The trial Court has committed serious error of jurisdiction in holding that the suit is maintainable and in deciding to proceed further in the matter. The remedies available to the plaintiffs-opposite parties were either by filing a Miscellaneous Case before the same court for recall of the order recording compromise and consequential decree or to challenge the decree in an appeal or to challenge the decree in an appeal under Section 96(1) of the Code.” 10. Although Mr. The remedies available to the plaintiffs-opposite parties were either by filing a Miscellaneous Case before the same court for recall of the order recording compromise and consequential decree or to challenge the decree in an appeal or to challenge the decree in an appeal under Section 96(1) of the Code.” 10. Although Mr. Parbat tried to distinguish the judgment rendered in the case on grounds that it was not clear from the judgment whether or not the plaintiff in the subsequent suit was a party in the previous suit but the objection is only taken to be rejected for the reason that if the plaintiff in the subsequent suit was not a party to the previous suit, the second suit was very much maintainable in view of the judgment of the Apex Court reported in 2009 (6) SCC 194 (Sneh Gupta Vs. Devi Sarup and Ors.) paragraph 58. 11. Whereas a stranger to a compromise has various forums to take recourse to, for questioning a compromise decree, a party to a compromise does not have such play field rather his right is circumscribed within the parameters of the previous suit proceeding. Such a contestant who was a party to a compromise can only question the compromise on twin grounds i.e. the compromise having been effected by practicing fraud upon the Court or the party concerned. 12. This issue has been elaborately discussed in another judgment of this Court reported in 2012(1)PLJR 437 (Satyendra Kumar @ Rajeev Ranjan & Ors. Vs. Most Shakuntala Kumari Verma). Reference is made to paragraph 9 of the said judgment, which runs as follows:– “9. The scope of Section 151 C.P.C. has been examined in plethora of decisions some of which will usefully be referred later on. By amendment of 1976 in the C.P.C. the scope of Order 23 Rule 3 has been widened by adding a proviso and explanation to the same and incorporating a new provision by way of Order 23 Rule 3A. Now the court which passes a compromise decree, in appropriate cases, is enjoined to determine the validity of the compromise. The observation of the Apex Court in (Banwari Lal Vs. Smt. Chando Devi)1993(1)PLJR 21 explaining the purpose of the amendment and the jurisdiction of the court under the amended Order 23 Rule 3 may here be aptly noticed: “6. Now the court which passes a compromise decree, in appropriate cases, is enjoined to determine the validity of the compromise. The observation of the Apex Court in (Banwari Lal Vs. Smt. Chando Devi)1993(1)PLJR 21 explaining the purpose of the amendment and the jurisdiction of the court under the amended Order 23 Rule 3 may here be aptly noticed: “6. The experience of the courts has been that on many occasions parties having filed petition for compromise on basis of which decree is prepared, later for one reason or other challenge the validity of such compromise. For setting aside such decree suits used to be filed which are dragged for years including appeals to different courts, keeping in view the predicament of the courts and the public, several amendments have been introduced in Order 23 of the Code of Civil Procedure. Rule 3 of Order 23, which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree…….” “7. By adding the proviso alongwith an explanation the purpose and object of the amending Act appears to be to compel the party challenging the compromise to question the same before the court which had recorded the compromise in question. That court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner….” It has been further laid down: “14.…It has been held by different High Courts that even after a compromise has been recorded the court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. The court before which it is alleged by one of the parties to the alleged compromise that no such compromise has been entered between the parties that court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act…” The Apex Court in a later decision, while reiterating the same view in (Dwarika Prasad Agrawal Vs. B.D. Agrawal) 2003 (6)SCC 230 has held:- “36. … Question as to whether a compromise is void or voidable under the Indian Contract Act or any other law for the time being in force, would have, thus, to be determined by court itself. B.D. Agrawal) 2003 (6)SCC 230 has held:- “36. … Question as to whether a compromise is void or voidable under the Indian Contract Act or any other law for the time being in force, would have, thus, to be determined by court itself. Once it is held that the agreement or the compromise was fraudulent the same per se would be unlawful and the court is required to declare the same as such…” Thus, the court, accepting a compromise and passing a decree on the said basis has the necessary jurisdiction to entertain an objection to the validity of the compromise under the powers conferred upon it by Order 23 Rule 3 C.P.C. as well as under its inherent powers. Even otherwise also every court possesses inherent power to pass necessary order for the ends of justice or to prevent abuse of its processes. The law, in this regard has been illumined by the Apex Court in (J.M.D. Syndicate Vs. I.T. Commissioner, New Delhi) AIR 1977 SC 1348 in the following words:- “…The courts have power, however, in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice… ” While considering the powers of a court in cases of fraud, the Hon’ble Supreme Court in (Indian Bank Vs. Satyam Fibers (India)Pvt. Ltd)AIR 1996 S.C.2592 has held :- “The judiciary in India also possesses inherent power, specially under Section 151 C.P.C. to recall its judgment or order if it is obtained by fraud on court…” “…Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of Court, the courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly when the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order…” 13. In view of the discussions hereinabove, I do not find any jurisdictional error or any legal infirmity in the order of the Court below in proceeding with the Miscellaneous Case. For the reasons aforesaid this application stands dismissed.