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2012 DIGILAW 791 (MP)

Pankaj @ Gajanan v. Usha

2012-08-09

K.K.LAHOTI

body2012
ORDER 1. This petition is directed under Article 227 of the Constitution of India against an order dated 28.9.2007 passed by IInd Additional District Judge, Chhindwara in case M.J.C. No.40/2007, by which an application filed by the petitioner under Order 23 rule 3 of CPC, for cancellation of judgment and decree dated 2.11.1998 in Civil Suit No.329-A/1998 decided on the basis of a compromise between the parties, was dismissed. 2. The learned counsel for petitioner submitted as under : (i) that the petitioner was minor on the date when the judgment and decree was passed on the basis of compromise, so the application was rightly filed for cancellation of the aforesaid judgment and decree based on compromise. (ii) that the Court below erred in rejecting the application while the compromise was neither legal nor in the interest of petitioner, who was minor at the relevant time. It was submitted that this petition may be allowed.The impugned order may be set aside and the application filed by the petitioner be allowed. 3. Learned counsel appearing for respondents supported the order. 4. To appreciate the rival contentions of the parties, it would be appropriate if the factual position in the case is stated. The respondent Smt. Kaushalya Bai along with her husband Bajirao filed a suit against the respondent Smt. Usha, Smt. Nalu Bai, petitioner Pankaj @ Gajanan and respondents No.4 and 5 claiming the service benefits of late Sudhakar, the son of respondent Smt. Kaushalya Bai and Bajirao. Sudhakar had married to Smt. Usha. Sudhakar had died on 16.6.1995. Pankaj and one Nalu Bai claiming to be son and wife of Sudhakar had claimed succession of the service benefits of Sudhakar.This suit was contested by Smt. Usha, Smt. Nalu Bai and petitioner Pankaj @ Gajanan (minor) and ultimately on 29.10.1998 a compromise was filed before the Ist Additional District Judge, Chhindwara in Civil Suit No.29-A/1998. In the compromise filed on behalf of petitioner, who was minor at that time, Nalu Bai, the mother of petitioner signed the compromise. Nalu Bai, had also moved an application before the Court for seeking permission to compromise on behalf of petitioner Pankaj, minor at that time. The Court considered the application in detail and found that the compromise was in favour and in the interest of minor and granted permission to Nalu Bai to compromise on behalf of petitioner herein. Nalu Bai, had also moved an application before the Court for seeking permission to compromise on behalf of petitioner Pankaj, minor at that time. The Court considered the application in detail and found that the compromise was in favour and in the interest of minor and granted permission to Nalu Bai to compromise on behalf of petitioner herein. Thereafter, the Court considered the compromise and allowed the application. As per the compromise the suit was settled in following terms : (a) The Commandant respondent No.4 was directed that out of service benefits of Sudhakar shall make payment of Rs.2,00,000/- to Nalu Bai and Pankaj (petitioner) and remaining amount along with interest shall be deposited by him in the Court. Out of the aforesaid deposited amount plaintiff No.1 Smt. Kaushalya Bai, defendant No.1 Smt. Usha; Nalu Bai and Pankaj all will get 1/3rd each. (b) That the pension of Sudhakar shall be paid to Smt. Usha, who shall pay it along with any increase to Smt. Kaushalya Bai during her life time and after death of Smt. Kaushalya Bai, defendant No.1 Smt. Usha shall be entitled to get entire amount of pension. The entire arrears of pension were also directed to be paid in favour of Smt. Kaushalya Bai, mother of Sudhakar. As Smt. Usha was also claiming compassionate appointment because of death of Sudhakar, it was settled that she would be entitled for compassionate appointment as per her eligibility and qualification and other parties will have no right in it. The aforesaid compromise was accepted and a decree was passed accordingly. The petitioner herein after attaining the majority filed a petition under Order 23 rule 3 CPC, for cancellation of the compromise decree mainly on the ground that he was minor at the time of compromise and the judgment and decree in Civil Suit No.29-A/1998. Nalu Bai is married wife of Sudhakar and he had not married to Smt. Usha Bai. However, Sudhakar was having illicit relationship with Smt. Usha and taking benefit of this, she had got her name recorded in the official papers as a nominee. As per the law, the second wife has no right in the property, inspite of this the compromise was entered, which was contrary to the interest of petitioner Pankaj. Similarly, Smt. Usha Bai was not entitled for the compassionate appointment and pension, while the petitioner is entitled for the compassionate appointment. As per the law, the second wife has no right in the property, inspite of this the compromise was entered, which was contrary to the interest of petitioner Pankaj. Similarly, Smt. Usha Bai was not entitled for the compassionate appointment and pension, while the petitioner is entitled for the compassionate appointment. On the aforesaid ground the application was filed for cancellation of compromise and also for setting aside the judgment and decree based on it. 5. The application was contested mainly by Smt. Usha. Smt. Nalu Bai had not opposed the application. Rest of parties remained absent. They had also not filed any reply before the Court below. The trial Court considered the entire record and has recorded following findings : (i) That at the time of compromise Pankaj was minor and his mother Nalu Bai was his guardian. (ii) That before filing of compromise Nalu Bai had moved an application before the Court for seeking permission to file compromise on behalf of minor. The aforesaid application was supported by an affidavit of Nalu Bai. On 30.10.1998 the Court considered the application and granted permission to Nalu Bai, who was also a guardian, in the suit, of minor. (iii) That as per the terms of compromise, a major amount was paid to the petitioner and his mother. The Court found that in the compromise the interest of minor were duly looked into. The compromise was arrived after due understanding by the parties and the Court after satisfying the terms of compromise recorded the compromise and granted decree. The Court found that the guardian of petitioner in the suit had duly protected the interest of minor, the compromise was not illegal and dismissed the petition. 6. In this case, it is not in dispute that at the relevant time petitioner herein was minor. He had challenged the compromise on the basis that Smt. Usha was not legally wedded wife of Sudhakar, he was entitled for compassionate appointment and other service benefits of Sudhakar. He has not alleged anything against Nalu Bai, who was his guardian, that the mother acted in any manner against the interest of petitioner or she had colluded with the plaintiff for compromise. In absence of any allegation against Nalu Bai, the Court below has rightly recorded a finding that the permission was rightly granted to Nalu Bai to enter into compromise on behalf of petitioner. In absence of any allegation against Nalu Bai, the Court below has rightly recorded a finding that the permission was rightly granted to Nalu Bai to enter into compromise on behalf of petitioner. Apart from this, from the perusal of compromise, it is apparent that substantial amount in lumpsum Rs.2,00,000/- was given to the petitioner and his mother. Apart from this, out of remaining amount the petitioner and his mother were again given 1/3rd amount and apparently this compromise was in favour of petitioner. At the relevant time when the petitioner was 12 years old, he was not entitled for compassionate appointment and in that circumstances, if the parties had agreed that the compassionate appointment be given to Smt. Usha, no fault is found. The relationship of Smt. Usha with Sudhakar were not denied even by the petitioner herein, in this petition. The compromise was arrived long back in the year 1998 and this application was filed in the year 2007 after nearabout 9 years of the compromise and the Court below considering the entire facts of the case, if recorded aforesaid finding, no fault is found. 7. This petition is found without merit and is dismissed with no order as to costs.