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2014 DIGILAW 1883 (RAJ)

Amritlal v. Kumhar Panch Maili Nyat, Sirohi

2014-11-24

ARUN BHANSALI

body2014
JUDGMENT 1. - This writ petition under Article 226 and 227 of the Constitution of India is directed against order dated 18.09.2014 passed by District Judge, Sirohi, whereby, the application filed by the petitioners under Order 23, Rule 3 CPC has been rejected. 2. An application was filed by the petitioners, inter alia, alleging that the appeal filed by the petitioners against the order passed by the Rent Tribunal was decided on 17.11.2007 based on a compromise while giving undertaking to vacate the premises by 16.11.2009; it was submitted that the counsel was not authorised to enter into the compromise and they never gave any consent for such compromise and, therefore, the decree dated 17.11.2007 be set aside. 3. The District Judge after hearing the parties came to the conclusion that provisions of Order 23, Rule 3 CPC does not envisage setting aside of order as against the order passed on 17.11.2007 a writ petition was filed, which was rejected and, therefore, the application was not maintainable. 4. Learned counsel for the petitioners reiterated that the compromise was entered into by the counsel without consent and, therefore, the application was maintainable. 5. On being directed, learned counsel for the petitioners has produced the orders dated 01.02.2013 passed in S.B. Civil Writ Petition No.9823/2008 (Amritlal v. Rent Tribunal, Sirohi & Ors.) and dated 27.05.2013 passed in D.B. Civil Special Appeal No.235/2013 (Amrit Lal v. The Rent Appellate Tribunal, Sirohi & Ors.). 6. In the order dated 01.02.2013 on a plea raised by the petitioners regarding unauthorized compromise having been entered into by the counsel, the Court observed as under:- "4. Having heard learned counsel for the parties at length and upon perusal of the order passed by the learned Appellate Rent Tribunal, Sirohi, this Court is of the opinion that Amritlal, the grandson of the original tenant, Narayan Lal (petitioner herein) could not directly inherit the tenancy and petitioner's father, namely, Sh. Kanhaiyalal who was also doing business in the suit shop, has admittedly signed the said compromise application under Order 25, Rule 3 CPC along-with other legal representatives of Narayan Lal, and the compromise application has also been signed by the advocate Mr. Kanhaiyalal who was also doing business in the suit shop, has admittedly signed the said compromise application under Order 25, Rule 3 CPC along-with other legal representatives of Narayan Lal, and the compromise application has also been signed by the advocate Mr. Ashwin Kumar Mardia, representing all the defendant/tenants (LR's of Narayan Lal) including the present petitioner Amritlal and thus all of them will be bound by the compromise decree and, therefore, this writ petition cannot be entertained, contrary to the compromise terms and the same is accordingly dismissed. The eviction decree granted by the learned Appellate Rent Tribunal, Sirohi, dated 17.11.2007 is upheld. No costs. The interim order granted by a coordinate bench of this Court on 15.12.2008 staying the order dated 17.11.2004 (Annex.8) is hereby vacated. A copy of this order be sent to the parties concerned and both the Rent Tribunals below forthwith." 7. Where after, the said order dated 01.02.2013 was questioned before the Division Bench and the Division Bench by its order dated 27.05.2013, inter alia, observed as under:- "In our view, the observations of the learned Single Judge remain unexceptionable. In the given status of record, the appellant was not having the capacity of a tenant in the suit premises. Further, a glance at the judgment and order dated 29.11.2006 makes it clear that the appellant was arrayed as a sub-letter and the Rent Tribunal held so against him. The fact of the matter remains that the appeal against the judgment and order dated 29.11.2006 was jointly filed by the appellant with his father Kanhaiya Lal and some other heirs of Narayan Lal, who were also arrayed as defendants in the proceedings. The deed of compromise as presented before the Appellate Rent Tribunal was specifically signed by the advocate authorised and instructed on behalf of all the appellants. This deed was also signed by the father of the present appellant who was appellant No.2 in the appeal and who was holding the capacity of tenant. The present appellant, rather, had the capacity only of a sub-letter and not beyond. Moreover, there had not been anything of unlawfulness in the terms of compromise; rather the appellants (inclusive of the present appellant) gained about 2 years time to vacate the premises. The present appellant, rather, had the capacity only of a sub-letter and not beyond. Moreover, there had not been anything of unlawfulness in the terms of compromise; rather the appellants (inclusive of the present appellant) gained about 2 years time to vacate the premises. In the given set of facts and circumstances, an attempt on the part of the appellant to question the disposal of the matter on the basis of such a compromise could not have been countenanced in the writ jurisdiction; and in our view, the learned Single Judge has rightly dismissed the writ petition. The appeal fails and is, therefore, dismissed." 8. From the above, it is apparent that the allegation made by the petitioners that the counsel was not authorised has already been raised by the petitioners before this Court and the District judge was justified in coming to the conclusion that the said plea could not be raised all over again. 9. In that view of the matter, there is no substance in the writ petition and the same is, therefore, dismissed. The stay application is also dismissed. No order as to costs.Petition Dismissed. *******