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2015 DIGILAW 6 (JK)

Narayan Dass v. Radha Swami Satsang Beas

2015-01-03

JANAK RAJ KOTWAL

body2015
JUDGMENT : Janak Raj Kotwal, J.:- 1. This civil revision has been filed by the plaintiff for setting aside judgment dated 31.12.2013, whereby learned Sub Registrar (Munsiff), Jammu 'disposed of as compromised' the civil suit filed by him against the respondent and directed drawing of the decree sheet in terms of the compromise deed. Heard. I have perused the record. 2. Facts giving rise to this revision petition, briefly, are that in the suit filed by him the petitioner/plaintiff had sought declaration that the will-deed executed on 13.11.1992 and registered on 30.11.1992 allegedly by his father, Bhula Ram, in regard to land comprised in Khasra Nos. 296 (9 kanals 3 marlas) and 297 (10 marlas) in favour of the respondent is null and void with consequential relief restraining defendant from interfering into his peaceful possession of the said land. Petitioner questioned the legality of the will-deed and sought it to be declared as null and void mainly on the grounds that the same was got executed by the defendant by misrepresentation and in deceitful manner from his father who was devotee of Radha Swami Sect and that his father Bhulla Ram, who was a displaced person of 1947, had been granted occupancy rights of the said land under section 3-A of Agrarian Reforms Act and no Will in respect of such rights could have been executed. Respondent/defendant contested petitioner's suit on various grounds and issues were framed by the trial court. However, file of the case came to be taken up in presence of counsel for the parties on 31.12.2013 by preponing the date of hearing on an application moved by the petitioner/plaintiff accompanied with a compromise agreement executed by the parties. As per this agreement the respondent gave possession of two kanals of land out of khasra No. 296 min to the petitioner in lieu of withdrawing the said suit and another suit filed by him. The petitioner agreed to withdraw both the suits and not to file any litigation in future. The learned trial court after recording statements of the parties passed the impugned judgment disposing of the suit as compromised and directing drawing of the decree sheet on the basis of a deed of compromise produced by the parties. The petitioner agreed to withdraw both the suits and not to file any litigation in future. The learned trial court after recording statements of the parties passed the impugned judgment disposing of the suit as compromised and directing drawing of the decree sheet on the basis of a deed of compromise produced by the parties. The brief judgment recorded by the learned trial court on 31.12.2013 reads: "The file has been taken up today on an application filed for early listing of the case. The learned counsel for the plaintiff filed an application averring therein that a compromise has been arrived between the parties whereby the plaintiff has agreed to resolve the dispute with respect to the landed property, as such, the plaintiff does not want to pursue the said suit. It is further submitted in the application that a compromise deed has also been executed between the parties. Finally, it has been prayed that a decree in terms of compromise deed may be passed. The application is accompanied by a compromise deed duly signed by both the parties. In support of the compromise, the statements of both the parties recorded who are duly identified by their learned counsels. Keeping in view that the parties have entered into compromise. Accordingly, the suit is disposed of as compromised. A decree sheet shall be prepared accordingly in terms of the compromise deed. The compromise deed shall form part of the decree. Decree shall bind parties to the suit only and shall in no way affect the rights of any third party. No order as to costs. The file after due compilation shall be consigned to record room." 3. While reading the revision petition, Mr. P.N. Raina, learned Senior Advocate, appearing for the petitioner, painstakingly sought to demonstrate that the compromise said to have been arrived at between the parties was illegal being contrary to section 67 of the J & K Tenancy Act, Svt. 1980 so recording of such a compromise and disposal of the suit and passing of the decree on its basis by the trial court is illegal and null and void. Mr. 1980 so recording of such a compromise and disposal of the suit and passing of the decree on its basis by the trial court is illegal and null and void. Mr. Raina sought to explain that the main ground of petitioners challenge to the will-deed, is that his father, having been allotted evacuee land as head of a family displaced in the year, 1947 and having been conferred occupancy right under section 3-A of the Act, was not competent to transfer the land/occupancy right by executing a will. No will could have been executed in respect of the said land by his father nor such a will can become an instrument of transfer. Besides, Mr. Raina submitted that the land being agricultural land cannot be transferred to a non-state subject, like the respondent herein and no such transfer can be effected by way of a will-deed. Mr. Raina, thus, submitted that on both the counts, civil court lacks jurisdiction to pass the impugned judgment and decree on the basis of a deed of compromise because such a decree tantamounts legalizing and validating illegal transfer of the land to a non-state subject. Mr. Raina, thus, concluded that the learned trial court has fallen into error and committed illegality by recording an illegal compromise and decreeing the suit on its basis. Mr. Raina relied upon a Division Bench judgment of this Court in S. Kirpal Singh v. S. Suchait Singh and Ors., 2000 SLJ 225 : JKJ Soft JKJ/8494, where learned Division Bench has held "that (1) transfer of occupancy rights u/s. 3-A of the Agrarian Reforms Act is permissible only by sale, mortgage or by gift (2) that the only method of succession of occupancy right is provided in section 67(3) that application of section 68 in this case is ruled out because the testator has not executed the will with the permission and consent of Custodian, i.e. landlord in this case as required under section 68 of the Act which is mandatory." 4. Per contra, Mr. S.S. Lehar, learned Senior Advocate, appearing for the respondent vehemently questioned the maintainability of this revision petition contending that an order recording or refusing to record a compromise under Order 23 Rule (3) CPC is appealable under Order 43 Rule Km) and therefore, revision is not competent. Mr. Lehar relied upon a judgment of this Court in Sita Kour and Anr. Mr. Lehar relied upon a judgment of this Court in Sita Kour and Anr. v. Aman Ullah, 1977 JKLR 279 : JKJ Soft JKJ/8132. In this relation, Mr. P.N. Raina, however, pointed out and rightly so that clause (m) of Order 43 Rule (1) CPC stands omitted by amendment Act XI of 1983 w.e.f. 15.8.1983. Besides, Mr. Lehar submitted that petitioner is a beneficiary under the compromise agreement and cannot be permitted to assail the same by invoking revisional jurisdiction of this Court. While reading the deed of compromise, Mr. Lehar sought to point out that by virtue of the compromise agreement, petitioner/plaintiff has agreed to withdraw and had withdrawn the suit and having done so, he cannot be permitted to reopen the issue as it is simple situation of withdrawing the suit and any effort to reopen the same is barred under Rue 3A of order 23 CPC. 5. Contention that this is a case of withdrawing the suit simpliciter is not tenable. The deed of compromise would show that the petitioner had abandoned his entire claim to the subject matter of the disputed will-deed in lieu of 2 kanals of land given to him by the respondent. In the application moved by the petitioner on 31.12.2013 prayer was made for permission to withdraw the suit in terms of compromise arrived at between the parties. Learned trial court disposed of the suit as compromised, directed the preparing of the decree accordingly and making the compromise deed as part of the decree. It is, therefore, a clear case of recording of the compromise and decreeing the suit in terms of Order 23 Rule (3) CPC and the disposal of the suit cannot be looked into independent of the terms of the compromise. 6. The question to be determined, thus, would be; whether the petitioner was left with any remedy in case of his subsequent dissatisfaction with the recording of the compromise and passing of the judgment and decree by the trial court and whether this revision petition is maintainable? 7. As clause (m) of Order 43 Rule (1) CPC stands omitted by the Amendment Act of 1983, an order recording or refusing to record a compromise under Order 23 Rule (3) is no longer appealable under that provision of law. 7. As clause (m) of Order 43 Rule (1) CPC stands omitted by the Amendment Act of 1983, an order recording or refusing to record a compromise under Order 23 Rule (3) is no longer appealable under that provision of law. No appeal against the impugned judgment dated 31.12.2013, whereby learned trial court recorded the compromise and decreed the suit on the basis thereof, therefore, could have been filed under clause (m) of Order 43 Rule (1) CPC. Nonetheless, the CPC even after omission of clause (m) of Order 43 Rule (1) by the Amendment Act of 1983, sufficiently provides for filing appeal against a judgment/order recording or refusing to record a compromise and disposing of the suit on the basis of compromise under Order 23 Rule (3) CPC and, therefore, this revision petition is not maintainable because under section 115 CPC, a revision petition can be filed only against a decision against which no appeal lies. 8. Sub-section (3) of section 96 CPC bars a suit against a compromise decree. It reads: "96. ..... (3) No appeal shall lie from a decree passed by the Court with consent of the parties." 9. The Amendment Act of 1983 on one hand having omitted clause (m) of Rule 43(1) CPC has on the other hand inserted a new Rule 1-A to Order 43, which reads: "1-A. Right to challenge non-appealable orders in appeal against decree.- (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded." 10. Besides, the Amendment Act of 1983, inserted a proviso and an explanation to Order 23 Rule (3) and added Rule 3-A, which read: "3. Besides, the Amendment Act of 1983, inserted a proviso and an explanation to Order 23 Rule (3) and added Rule 3-A, which read: "3. Compromise of 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 the reason to be recorded, thinks fit to grunt such adjournment. Explanation - An agreement or compromise which is void or voidable under the Contract Act, Svt. 1977, shall not be deemed to be lawful within the meaning of this rule." "3-A Bar to suit-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful." 11. Provisions similar to the aforementioned were earlier similarly inserted in Central CPC by the Civil Procedure Code (Amendment) Act, 1976, which have been interpreted by the Supreme Court in juxtaposition in rather similar fact situation arising in Banwari Lal and Anr. v. Smt. Chando Devi, AIR 1993 SC 1139 . I may reproduce paragraphs 8, 9 & 13 of the judgment in Banwari Lal, which state the law in regard to remedy available to a party assailing recording of an agreement/compromise under Order 23(3) CPC. "8. Earlier under Order 43, Rule 1(m), an appeal was maintainable against an order under Rule 3 of Order 23 recording or refusing to record an agreement, compromise or satisfaction. But by the amending Act aforesaid that clause has been deleted; the result whereof is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise under Rule 3 of Order 23. Being conscious that the right of appeal against the order recording a compromise or refusing to record a compromise was being taken away, a new Rule 1A has been added to Order 43 which is as follows:- 1A. Right to challenge non-appealable orders in appeal against decrees. -(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. -(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced. (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. 9. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule Km). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute." "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 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 Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of Compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule Km) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code." 12. In view of the legal position laid down by the Supreme Court in Banwari Lal's case, petitioner/plaintiff could have assailed the impugned order in appeal and therefore, this revision petition is not maintainable. The same is accordingly, dismissed. 13. Record of the trial court be remitted back along with a copy of this judgment.