Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 607 (MP)

Nand Kishore v. Rajendra Kumar

2016-07-25

ALOK VERMA

body2016
ORDER 1. This common order shall govern disposal of Miscellaneous Appeal No.776/2015 and Miscellaneous Appeal No.1171/2015. 2. Miscellaneous Appeal No.776/2015 is filed by Nand Kishore who was defendant No.3 before the trial Court. Miscellaneous Appeal No.1171/2015 is filed by Rajendra Kumar who was plaintiff before the trial Court. 3. These two appeals arise from the orders passed by the learned Additional District Judge, Manasa, District Neemuch in Civil Suit No.3-A/2008 dated 10.3.2015 whereby the learned Additional District Judge disposed of an application filed by appellant Nand Kishore under Order 39 rules 1 and 2 of CPC. In Miscellaneous Appeal No.1171/2015, the order is passed on an application filed by the plaintiff Rajendra Kumar under the same provisions which was also disposed of by order dated 10.3.2015. Though two separate orders are passed however, both the orders are based on same facts and involve same questions of law and therefore, both the appeals are being dealt with by this common order. 4. The case of the appellants before the trial Court was that the suit property bearing survey No.92/2 area 2 hectares belonged to Ramkumar and Dhapubai. They had two sons Mangilal and Ramgopal. The appellants are sons of Mangilal and defendant No.2 before the trial Court, Chandrakantabai, is wife of Mangilal. The contesting defendants No.6 and 7 Chandrashekhar @ Chandresh and Dilip are sons of Ramgopal. According to the appellants, in the suit property left by late Ramkumar and Dhapubai, their two sons Mangilal and Ramgopal had 1/2 share each and being heirs of Mangilal, the appellants also have 1/2 of the share. 5. In this case, the father of the appellants Mangilal filed a civil suit bearing registration No.4-A/66 which ended in a compromise. A written compromise was filed in this matter in which it was mentioned that Magilal received his share in money which was Rs.9,500/- and relinquished his share in the suit property. Subsequently the suit was dismissed on the basis of compromise. However, no decree was passed and the suit was merely dismissed. However, it was mentioned that parties appeared before the Court. They submitted written compromise. They were identified by the counsel and subsequently on their prayer the suit was dismissed. No decree was passed on the basis of compromise. 6. Subsequently the suit was dismissed on the basis of compromise. However, no decree was passed and the suit was merely dismissed. However, it was mentioned that parties appeared before the Court. They submitted written compromise. They were identified by the counsel and subsequently on their prayer the suit was dismissed. No decree was passed on the basis of compromise. 6. Respondents No.6 and 7 contested the application on the ground that father of the present appellants already relinquished his share and received Rs.9,500/- in lieu of his share in the suit property. Subsequently, the suit property remained in their possession. Mutation in the revenue records was also incorporated on 30.8.1977. Thereafter, after a long duration, the suit was filed only in the year 2008, by son of Mangilal, who acquired no interest in the suit property, as their father and predecessor during their life time already relinquished the share in the suit property. 7. According to the appellants, as no decree was passed, no registered instrument was executed. The relinquishment by Mangilal cannot be deemed to have been taken place. The suit was not decided on merits and therefore, no benefit can be given to the respondents No.6 and 7 on the basis of compromise allegedly entered into by Mangilal. They further submit that appellants were minor at the time when the compromise was entered into and therefore they are not bound by the compromise entered into by their father. 8. Learned trial Court held that at this stage, it cannot be said that compromise was illegal or was entered into by Mangilal under any coercion and duress. According to the learned trial Court, the parties appeared before the Court and were identified by the counsel, and thereafter, suit was dismissed on the basis of the compromise and therefore compromise was a matter of record. The effect of such compromise can only be seen at the time of final disposal of the case. At this stage, no inference can be drawn in respect of relinquishment of share by Mangilal and its effect on the suit. Thus, finding that there was no prima facie case, and no balance of convenience in favour of the appellants and no irreparable injury would be caused if no injunction is issued, the trial Court proceeded to dismiss the applications. 9. I have gone through the impugned orders. Thus, finding that there was no prima facie case, and no balance of convenience in favour of the appellants and no irreparable injury would be caused if no injunction is issued, the trial Court proceeded to dismiss the applications. 9. I have gone through the impugned orders. Learned counsel for the respondents places reliance on the judgment of Hon'ble apex Court in the case of Skyline Education Institute (Pvt.) Ltd. v. S.L.Vaswani [ AIR 2010 SC 3221 ], wherein the Hon'ble apex Court held that interference should not be done only because different view is possible in the matter. Similarly he also placed reliance on the judgment of Hon'ble apex Court in the case of Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan [ (2013)9 SCC 221 ]. In this case also the Hon'ble apex Court held that discretion exercised by the trial Court should not be interfered unless exercise of such discretion by the trial Court is palpably incorrect or untenable. 10. In the present case, it is undisputed that the previous suit was filed which ended into a compromise. The compromise is on record. Mutation took place in the year 1977. Thereafter, the suit was filed only in the year 2008. 11. In my opinion, the view expressed by the trial Court on compromise, that can only be seen at the end of the trial, is proper. At this stage, no interference can be called for in the discretion exercised by the trial Court which appear reasonable and just. Accordingly, I find that these appeals are devoid of merit and is liable to be dismissed and dismissed accordingly. Before parting with this order, it is made clear that observations made hereinabove are only for the purpose of dismissing of these miscellaneous appeals, but will have no bearing whatsoever on the decision of the suit by the trial Court on merits.