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2013 DIGILAW 127 (PAT)

Urmila Devi v. Ashok Prasad

2013-01-29

JYOTI SARAN

body2013
ORAL ORDER This civil revision application is directed against the order dated 24.3.2011 passed by learned Sub-Judge, Danapur, District Patna in Misc. Case No.5 of 2010 whereby the learned Court below has been pleased to reject the miscellaneous case filed under the proviso to Order 23 Rule 3 of the Code of Civil Procedure (hereinafter referred to as the „Code?) read with Section 151 thereof. 2. An issue of maintainability of the present proceedings has been raised by the office. 3. Considering the nature of relief prayed in the present application, this civil revision application is held maintainable. 4. The facts of the case briefly stated is that a partition suit was filed by the plaintiff-opposite party No.1 giving rise to Title (Partition) Suit No. 144 of 2003 claiming 1/5th share in the suit property. The plaintiff-opposite party No.1 had arraigned his father Shri Narendra Prasad (since deceased), his mother the present petitioner and his brothers as opposite parties. The plaintiff-opposite party No.1 also has two sisters who were not arraigned as parties. A compromise petition is stated to have been filed on behalf of the parties to the suit along with an affidavit on 23.01.2004, a copy whereof is placed at Annexure-1 to the application. The compromise petition bears the signature of the defendant-petitioner on the application, on the verification as well as in the affidavit portion. Following the compromise petition, the learned trial Court after recording the evidence of the plaintiff-opposite party No.1, Ashok Prasad and the deceased defendant Narendra Prasad, the father and after discharging them, recorded a compromise decree in terms of the shares allotted in favour of the opposite parties herein in the compromise petition, vide order passed on 12.7.2004. 5. It is the case of the present petitioner that suffering ill treatment and neglect at the hands of the opposite parties, she claimed a share in the property of her late husband when she was informed that the property had already been partitioned under the compromise decree dated 12.7.2004. The petitioner filed an information slip to ascertain the correct position on 21.01.2010 and upon receiving the report from the office on 16.2.2010 became aware of the compromise decree passed in Title Suit No. 144 of 2003. The petitioner filed an information slip to ascertain the correct position on 21.01.2010 and upon receiving the report from the office on 16.2.2010 became aware of the compromise decree passed in Title Suit No. 144 of 2003. The husband of the petitioner in the meantime had deceased on 8.9.2005 i.e. after passing of the compromise decree which allotted no share in favour of the petitioner or her late husband. The petitioner charging the plaintiffs-opposite parties of having obtained her signature on blank sheets for recording the compromise, filed an application under the proviso to Order 23 Rule 3(A) of the Code for setting aside the compromise decree inter alia on grounds that it was fraught by fraud giving rise to Misc. Case No. 5 of 2010 and the learned trial Court by order impugned dated 24.3.2011 has rejected the miscellaneous case at the admission stage itself holding that there is no element of fraud in recording the compromise decree since the signatures present on the compromise petition prima facie appear to be that of the petitioner. Hence the present civil revision application. 6. Mr. Bishwa Nath Choudhary, learned counsel for the petitioner has questioned the order impugned passed by the learned Court below in the miscellaneous case on two grounds namely:- (1) that there is apparent discrepancy in the signature of the petitioner appearing at the foot of the compromise petition which has been signed as Urmil Devi, in comparison to the other signature appearing on the verification and the affidavit portion and (2) that the petitioner was never noticed nor her evidence was recorded by the trial Court before recording the compromise. 7. Learned counsel in support of his contention has relied upon a judgment of the Supreme Court rendered in the case of Devi Prasad and Ors. Versus Vishwa Nath Prasad and Ors. reported in 2009(4)PLJR 237 (SC) to submit that the moment a forgery is complained, an enquiry by the trial Court becomes a necessity and the present miscellaneous case having been disposed of at the stage of admission itself, the order impugned suffers from material irregularity and cannot be upheld. 8. The arguments of learned counsel for the petitioner has been strongly contested by Mr. Aditya Narain Singh, learned counsel for the opposite parties. 8. The arguments of learned counsel for the petitioner has been strongly contested by Mr. Aditya Narain Singh, learned counsel for the opposite parties. It is submitted that the petitioner having admitted her signatures at paragraph 8(vi) of the miscellaneous petition appended at Annexure-3 to this application, there is no element of forgery. It is further submitted that as the petitioner was not entitled to any share during the life time of her husband and her right, if any, only was created under the amended provisions of Section 6 of the Hindu Succession Act as amended in the year 2005, no prejudice has been caused to her. It is further submitted that the property exclusively belonging to the father late Narendra Prasad, the partition under the compromise decree suffers from no infirmity and the petitioner cannot claim any share in the property. Mr. Singh, however, could not justify the non-examination of the petitioner by the trial Court and why the trial Court recorded the compromise only on the basis of the evidence of the plaintiff-opposite party No.1 and the deceased defendant Narendra Prasad, the father of the opposite parties/the husband of the present petitioner. 9. I have heard learned counsel for the parties and have perused the materials on record. 10. Order 23 Rule 3 of the Code of Civil Procedure runs as follows:- “3. 9. I have heard learned counsel for the parties and have perused the materials on record. 10. Order 23 Rule 3 of the Code of Civil Procedure runs as follows:- “3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]: [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment] [Explanation.- 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.]” 11. The provisions of Order 23 Rule 3 of the Code casts an obligation upon the Court recording a compromise to be satisfied by the proof led by the parties demonstrating adjustment of the suit either wholly or in part under a lawful agreement or a compromise which is in writing and duly signed by the parties. The proviso to the provision of Order 23 Rule 3 confers a liberty on the party to the compromise to question the adjustment or the satisfaction arrived at by the Court and which has to be decided by the Court concerned in accordance with law. 12. The legislative intent of the provision of Order 23 Rule 3 of the Code opening with the words “where it is proved to the satisfaction of the Court……..” by itself mandates that the parties have to prove before the trial Court concerned that the compromise/agreement is lawful. 12. The legislative intent of the provision of Order 23 Rule 3 of the Code opening with the words “where it is proved to the satisfaction of the Court……..” by itself mandates that the parties have to prove before the trial Court concerned that the compromise/agreement is lawful. For a compromise/agreement to be lawful, not only the signature of the parties to compromise on the compromise petition is mandatory but in addition thereto, the signatories to the compromise have to express their consent and willingness to the compromise by adducing their respective evidence before the trial Court concerned. The satisfaction of the Court recording a compromise thus is not an empty formality rather has to be reflected from the order recording compromise. Further, by inserting Order 23 R.3A, the remedy by way of separate suit to a party seeking to assail a compromise decree on the ground that it is not lawful, has been expressly taken away. Thus the only remedy available to an aggrieved in such a case, is to challenge the legality of the compromise decree before the Court which has passed the decree. At this juncture it would be apposite to reminisce the following observation of their Lordships made in the case of Banwari Lal versus Chando Devi reported in (1993)1SCC 581:- “13. When the amending Act introduced a proviso along with an Explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, „the court shall decide the question?, the court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the Explanation to the proviso says that an agreement or compromise „which is void or voidable under the Contract Act….? shall not be deemed to be lawful within the meaning of said Rule. …….” 14. Similar view has been reiterated in a recent decision of a Supreme Court rendered in a case of Horil Vs. Keshav reported in (2012)5SCC 525 wherein it has been held that the expression „not lawful? used in Order 23 Rule 3A also covers a compromise decree obtained by fraudulent means. 15. …….” 14. Similar view has been reiterated in a recent decision of a Supreme Court rendered in a case of Horil Vs. Keshav reported in (2012)5SCC 525 wherein it has been held that the expression „not lawful? used in Order 23 Rule 3A also covers a compromise decree obtained by fraudulent means. 15. From the aforementioned decisions of the Supreme Court, the emphasis on a comprehensive enquiry by the Court on the allegations touching the legality of the agreement leading to compromise decree, is clearly discernible. The Court therefore has been enjoined to make enquiry and only thereafter decide the controversy, keeping in view the bar to a separate suit. Such enquiry is not to be made in a summary manner nor without affording adequate opportunity to the petitioner to establish allegations by adducing evidence. It is beyond comprehension as to how the Court, in the present case has come to a finding that the agreement has been lawfully reached between the parties, only on the basis of its satisfaction recorded in a summary manner that the signature of the petitioner is there on the agreement, without adverting to the issue of fraud, misrepresentation, fabrication or coercion as alleged. The decision by the Court in such cases must be arrived at, after hearing the parties and on the basis of the evidence brought on record by the parties to the compromise in support of their cases. The legislative intent of the provision envisages such a decision. 16. Having outlined the scope of an enquiry enjoined upon a Court under the proviso to O 23 r 3, it is now to be seen whether the learned Court below has adhered to these essentials. The answer is in the negative and the reasons are apparent. 17. Even if it is assumed that the signatures on the compromise petition belonged to the defendant-petitioner yet the question remains that; was she not entitled to an opportunity to lead evidence in order to demonstrate whether or not the signatures had been obtained by the parties to the suit by practicing fraud and; was she not entitled to demonstrate that the compromise, in essence, did not have her valid consent. It is not in dispute rather admitted that neither the trial Court has recorded the evidence of the petitioner nor the compromise decree has been tested in this background by the Court below while passing the order impugned rejecting the miscellaneous case even when a specific plea to that effect was raised by the petitioner in paragraph 8(vii) of the miscellaneous petition. The order recording compromise dated 12.7.2004, a copy whereof is placed at Annexure-2, clearly admits that the evidence of only the plaintiff-opposite party No.1 and of the deceased defendant Narendra Prasad the husband of the petitioner was taken and of none others. In absence of recording of evidence of the petitioner who was admittedly, a defendant in the suit, the compromise decree suffers from material irregularity and cannot be upheld. This serious infirmity has been overlooked by the Court below while passing the impugned order. 18. The issue that the compromise decree requires valid consent of all the parties to the suit stands well settled by a Division Bench judgment of this Court rendered in the case of Mathura Singh and Ors. versus Deodhari Singh and Ors. reported in AIR 1972 Patna 17. 19. A mere signature appearing on the compromise petition was not by itself sufficient for the learned trial Court to have recorded a compromise, thereon in absence of evidence of all the parties to the compromise unconditionally supporting the terms of compromise. It does not stand to reason as to why the trial Court restricted itself only to recording the evidence of the plaintiff and the defendant Narendra Prasad (since deceased) in support of the compromise petition while leaving out the other parties to the suit. The satisfaction recorded by the trial Court on the compromise petition in such circumstances suffers from serious material irregularities and cannot be upheld. The learned Court below having overlooked such serious legal infirmities in the compromise decree and having not allowed the petitioner to establish her case by holding a proper enquiry in the manner envisaged under the provisions, the order passed by the Court below as impugned, suffers from serious material irregularities and also cannot be upheld. 20. For the reasons aforesaid, the order dated 24.3.2011 passed by learned Sub Judge, Danapur District Patna in Misc. 20. For the reasons aforesaid, the order dated 24.3.2011 passed by learned Sub Judge, Danapur District Patna in Misc. Case No. 5 of 2010 together with compromise decree dated 12.7.2004 passed in Title Suit No. 144 of 2003 are set aside and the Title Suit No. 144 of 2003 is restored to its original file for a fresh hearing and disposal in accordance with law after giving full opportunity the parties to adduce evidence in support of their cases and on the evidence already recorded in the case. The title suit shall proceed from the stage of filing of the compromise petition dated 23.1.2004 and the recording of evidence of the plaintiff and defendant Narendra Prasad (since deceased). 21. The Civil Revision application is allowed but without any order as to costs. 22. Let the Lower Court Records be returned to the Court concerned forthwith, in a sealed cover.