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Allahabad High Court · body

2013 DIGILAW 2028 (ALL)

Vinod Kumar v. State of U. P. and Others

2013-08-05

A.P.SAHI

body2013
Amreshwar Pratap Sahi, J.— Heard Sri Pankaj Kumar Tyagi, learned counsel for the petitioner, Sri H.R.Mishra, learned Senior Counsel for the contesting-respondents and learned standing counsel for the State-respondents. A counter affidavit has been filed on behalf of the contesting respondents. This petition arises out of proceedings under Section 229-B of the U.P.Z.A. &. L.R. Act. A suit was filed for declaration by the respondents, who were the plaintiffs. It is alleged that the petitioner entered into a compromise, which was filed before the trial court but the trial court instead of accepting the same, rejected the compromise in the absence of the counsel for the parties. This order dated 17.12.2008 has been filed as Annexure-4 to the writ petition. It is undisputed that the said order was ex parte to both the plaintiff and defendant. A revision was filed by the respondent-defendant, which was allowed after hearing the parties on 16.3.2009 accepting the compromise to be valid and the suit being decreed accordingly. A finding was recorded that the compromise appears to be affixed with photographs of the contesting parties and had been verified by their respective counsel. Thereafter, the Sub Divisional Officer accepted the same and proceeded to reject the said compromise application erroneously. The revisional court, therefore, set aside the order of trial court and directed the trial court to proceed in accordance with the compromise. The petitioner preferred a revision before the Board of Revenue, which was dismissed affirming the order of learned Additional Commissioner. A counter affidavit has been filed by the contesting respondent bringing on record a xerox copy of the compromise application which had been duly verified and was witnessed by affixing photographs of the parties to the said compromise. A rejoinder affidavit to the same has been filed denying the same and contending that the compromise had been rejected by the trial court. Having considered the aforesaid submissions, parties to a suit can always compromise the same in terms of Rule 3 of Order 23 C.P.C. The procedure for entering into a compromise and its verification is indicated therein. In the instant case, the trial court, for reasons best known, proceeded ex parte and in the absence of both the parties, rejected the compromise on the ground that they did not conform to the legal provisions. In the instant case, the trial court, for reasons best known, proceeded ex parte and in the absence of both the parties, rejected the compromise on the ground that they did not conform to the legal provisions. I do not find any reason indicating as to what was the legal infirmity in the compromise and why was it not accepted when the parties were not even present to oppose it and the order was passed ex parte to them. The revisional court has examined the contents of the compromise application and observed that it was duly verified and photographs of the parties were affixed thereto. To examine the impact of such a compromise the matter ought to have been remitted back to the trial court where the compromise, as alleged, had been entered into. This was necessary inasmuch as the objection of other side was with regard to the genuineness of the said compromise, which can always be examined by the same court where the compromise had been entered into. In view of the amendments that have been brought out in Civil Procedure Code to that effect the revisional court, therefore, while allowing the revision ought to have remitted the matter back to the trial court for an appropriate verification of the compromise after contest. To that extent the revisional court fell in error by accepting the claim of the respondents on the factum of the said compromise and treating it to be sufficient to draw up a decree in terms of the compromise. The Board of Revenue has not given any reason but has simply affirmed order of the revisional court. In my opinion, the compromise in original ought to have been transmitted to the trial court for its proper verification. Consequently, the writ petition is partly allowed and the order of the Additional Commissioner dated 16.3.2009 is partly set aside to the extent that the matter shall now be remitted to the trial court afresh for the purpose of verification of the compromise or any orders passed thereon after allowing the parties an opportunity. The order of the Board of Revenue dated 5.5.2009 is also quashed. The order of the Board of Revenue dated 5.5.2009 is also quashed. The writ petition is allowed with a direction to the trial court to proceed to pass appropriate orders in the light of the observations made hereinabove within a period of six months from the date of production of a certified copy of this order before him. _____________