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2016 DIGILAW 216 (GAU)

Zosangliana, S/o Vanrova Mission Veng, Aizawl v. Vanlalrema S/o Lalveta, Ramhlun North, Aizawl

2016-03-23

MICHAEL ZOTHANKHUMA

body2016
JUDGMENT AND ORDER : Michael Zothankhuma, J. Heard Mr. Zochhuana, learned counsel appearing for the petitioner. Also heard Mr. S. Pradhan, counsel for the sole respondent. 2. The appellant’s case in brief is that the respondent/plaintiff had filed Declaratory Suit No. 1 of 2008 in the Subordinate District Council Court, Aizawl praying that the respondent/plaintiff should be declared the owner of the property in dispute. The Trial Court decreed the suit in favour of the plaintiff/respondent. 3. The petitioner/defendant preferred a Regular First Appeal vide RFA No.11 of 2009 before the District Council Court, Aizawl challenging the Judgment of the Subordinate District Council Court, Aizawl on the ground that no notice was issued to the petitioner/defendant before decreeing the suit in favour of the respondent/plaintiff. The RFA No. 11 of 2009 was transferred to the Court of Senior Civil Judge-I, Aizawl in view of the fact that the Judiciary had separated from the Executive vide the Mizoram Civil Courts Act, 2005. The RFA No. 11 of 2009 was dismissed by the Court of the Senior Civil Judge-I, Aizawl vide judgment and order dated 9.4.2012. The petitioner/defendant thereafter preferred another RFA No.24 of 2012 against the Judgment and order dated 9.4.2012 passed by the Senior Civil Judge-I, Aizawl before the Additional District Judge-I, Aizawl. The Additional District Judge-I, Aizawl set aside the Judgment & Order dated 21.1.2009 passed in Declaratory Suit No. 1 of 2008 and Judgment & Order dated 9.4.2012 passed in RFA No. 11 of 2009 vide order dated 11.2.2013. 4. The respondent/plaintiff thereafter preferred a Revision Petition vide CRP No.6 of 2013 before this Court challenging the Order dated 11.2.2013 passed in RFA No. 24 of 2012. 5. This Court passed its Judgment & Order dated 9.12.2013 in CRP No. 6 of 2013 wherein the Order dated 11.2.2013 passed by the learned Additional District Judge-I, Aizawl in RFA No.24 of 2012 was set aside. 6. The petitioner/defendant thereafter filed RSA No. 2 of 2014 before this Court challenging the Judgment & Order dated 21.1.2009 passed in Declaratory Suit No. 1 of 2008 and Judgment & Order dated 9.4.2012 passed in RFA No.11 of 2009. 7. The petitioner/defendant thereafter prayed for withdrawal of RSA No.2 of 2014 and the same was allowed by this Court vide Order dated 8.5.2014. 8. 7. The petitioner/defendant thereafter prayed for withdrawal of RSA No.2 of 2014 and the same was allowed by this Court vide Order dated 8.5.2014. 8. The petitioner/defendant has now come by way of this petition under Article 227 of the Constitution of India challenging the Judgment & Order dated 21.1.2009 passed in Declaratory Suit No.1 of 2008 and the Order dated 9.4.2012 passed in RFA No.11 of 2009. 9. Mr. S. Pradhan, the counsel for the respondent/plaintiff submits that the present review petition under Article 227 of the Constitution is not maintainable. 10. I have heard the counsels for the parties. 11. The condition of maintainability of a petition under Article 227 of the Constitution of India has been laid down by the Apex Court in Sadhana Lodh v. National Insurance Co.Ltd and another reported in 2003 3 SCC 524 . The Apex Court has held in the above case that where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 CPC. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. In the present case the petitioner has not filed the present petition under Section 115 CPC and there is no express bar made by way of a state enactment, and as such, the present revision petition filed under Article 227 of the Constitution is not maintainable. However, the counsels for the parties have both submitted that they have been instructed by their clients that the parties have come to a compromise, which is as follows :- (i) the petitioner/defendant shall pay to the respondent/plaintiff the amount of Rs.5.5 lakhs (Rupees five lakhs fifty thousand)only within a period of 6 (six) months from today as full and final payment of the loan taken by the petitioner/defendant. (ii) the petitioner/defendant shall pay the amount of Rs. 5.5 lakhs by way of 3 (three) instalments. (ii) the petitioner/defendant shall pay the amount of Rs. 5.5 lakhs by way of 3 (three) instalments. (iii) the first instalment of Rs.2.5 lakhs shall be paid by the petitioner/defendant within a period of 2 (two) months from today i.e. on or before 22.5.2016. (iv) the second instalment of Rs.1.5 lakhs shall be paid by the petitioner/defendant to the respondent/plaintiff on or before 22.7.2016. (v) the third instalment of Rs.1.5 lakhs shall be paid by the petitioner/defendant to the respondent/plaintiff on or before 22.9.2016. (vi) the respondent/plaintiff shall on receipt of the last instalment immediately hand over the LSC No.104801/01/420 of 2005 to the petitioner/defendant 12. The counsel for the parties both submit that this compromise had been made by the parties on their own free will and without any coercion from any body. 13. The present petition is disposed of as per the compromise terms recorded above and shall be complied by the parties strictly. 14. It is needless to observe that if the petitioner/defendant does not comply with the terms of settlement/compromise recorded above, the petition filed under Article 227 of the Constitution of India being not maintainable as per the case of Sadhana Lodh v. National Insurance Co. Ltd and another (supra), the petition shall be deemed to be dismissed as being not maintainable and the Judgment & Order dated 21.1.2009 passed in Declaratory Suit No.1 of 2008 and the judgment and order dated 9.4.2012 passed in RFA No.11 of 2009 shall be deemed to be upheld.