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2024 DIGILAW 285 (RAJ)

Lal Singh Chouhan v. Kishan Singh Chouhan

2024-02-15

NUPUR BHATI

body2024
ORDER : (Nupur Bhati, J.) This writ petition has been preferred by the petitioner/plaintiff being aggrieved by order dated 10.07.2021 (Annex.5) passed by National Lok Adalat, orders dated 12.07.2021 (Annex.6) and 19.09.2023 (Annex.10) passed by learned District Judge, Sirohi. 2. Briefly stated, the facts of the case are that the petitioner and respondents No.1, 2 and 3 are the siblings. The petitioner/plaintiff filed a suit for partition and permanent injunction against respondents No.1, 2 and 3 before the learned District Judge Sirohi. In the plaint it was, inter-alia, averred that petitioner's father and mother expired on 07.04.2004 and 20.10.2020 respectively. After death of petitioner's parents, the defendants on the basis of forged Will got their names mutated in the revenue record. The petitioner/plaintiff thus filed the suit claiming his ¼ share in the suit land. 3. The suit was registered and summons were issued to the respondents/defendants. Thereafter, despite service of the summons, when no body appeared on behalf of respondents/defendants, an ad-interim injunction was passed on 02.01.2021 restraining the defendants No.1 and 2 from selling or transferring the suit property and they shall no alter the status of the land as also the revenue record. 4. In the meanwhile, the respondents initiated criminal proceedings against the petitioner and one Parbat Singh, in which the petitioner was bailed out. Thereafter, it is alleged that the respondents approached to petitioner for settling the dispute and a compromise was executed. It is further alleged that the petitioner was ready and willing to enter into the compromise only to the extent of criminal case, however, while hatching conspiracy, the respondents/defendants secured his signatures on a compromise for settling criminal and civil case both. 5. In the petition, the petitioner has further alleged that on the basis of alleged compromise (Annex.4), the matter was referred to National Lok Adalat by the District Judge, Sirohi. The National Lok Adalat, thereafter on the basis of compromise arrived at between the parties vide order dated 10.07.2021 recorded the proceedings that in view of compromise arrived at between the parties, the petitioner/plaintiff does not want to pursue the suit against the respondents/defendants and the matter was directed to be placed before the regular court for passing appropriate order on 12.07.2021. Thereafter, on receipt of the case file from National Lok Adlaat, the learned District Judge, Sirohi in the light of compromise arrived at between the parties, dismissed the suit vide order dated 12.07.2021. 6. The petitioner/plaintiff aggrieved by order dated 12.07.2021 initially preferred a first appeal before this Court being S.B. Civil First Appeal No.444/2021, however, the said appeal later on was dismissed as not pressed on 06.12.2021, inasmuch as the petitioner had already filed objections assailing the compromise before the District Judge. 7. Thereafter, the petitioner filed an application under Order 23, Rule 3 read with section 151 CPC assailing the judgment and decree dated 12.07.2021 passed by learned District Judge. 8. The learned District Judge, Sirohi thereafter vide its order dated 19.09.2023 proceeded to reject the said application, which order is also under challenge in this writ petition. 9. At the outset, learned counsel for the petitioner submits that while keeping the petitioner under the impression the compromise is being reduced into writing for settling the criminal case only, however, by playing fraud, the compromise was executed qua the civil suit filed by him. Counsel for the petitioner further submits that after execution of the compromise, illegal construction has also been raised. It is submitted that taking advantage of petitioner's illiteracy the compromise has been executed and on the anvil of said compromise, the suit preferred by the petitioner for partition and permanent injunction has wrongly been rejected. Counsel thus submits that the learned District Judge has seriously erred in not entertaining his application under Order 23, Rule 3 read with section 151 CPC. 10. Learned counsel for the petitioner/plaintiff thus submits that the orders impugned be set aside and the writ petition be allowed. 11. I have considered the submissions made by counsel for the petition and have perused the material available on record. 12. 10. Learned counsel for the petitioner/plaintiff thus submits that the orders impugned be set aside and the writ petition be allowed. 11. I have considered the submissions made by counsel for the petition and have perused the material available on record. 12. Order XXIII Rule 3 CPC, 1908 reads as under: "O. XXIII- Withdrawal of suit or abandonment of part of claim.-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. xxx (3) Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim." 13. This Court finds that the petitioner is claiming himself to be an illiterate person, whereas a perusal of the compromise dated 07.07.2021 (Annex.4) would reveal that the petitioner in the presence of his counsel Sh. Pramod Kumar Dave has signed the compromise affirming/accepting the fact that in the spirit of Lok Adalat, a compromise has been arrived at and he does not want to pursue the suit further and in the light of compromise, the suit be dismissed. On the basis of aforesaid compromise, the matter was referred to National Lok Adalat and the National Lok Adalat, recording the factum of compromise arrived at between the parties vide order dated 10.07.2021 referred the matter to the regular court for passing appropriate decree. It is thereafter, the learned District Judge, after considering the fact of compromise arrived at between the parties, whereby the petitioner/plaintiff consented for not pursuing the suit further, dismissed the suit vide judgment and decree dated 12.07.2021. 14. It is thereafter, the learned District Judge, after considering the fact of compromise arrived at between the parties, whereby the petitioner/plaintiff consented for not pursuing the suit further, dismissed the suit vide judgment and decree dated 12.07.2021. 14. This Court also finds that questioning the validity of the judgment dated 12.07.2021 the petitioner/plaintiff filed a first appeal, which was also dismissed as not pressed on 06.12.2021 with liberty to file appropriate application assailing the compromise before the District Judge. 15. 14. This Court also finds that questioning the validity of the judgment dated 12.07.2021 the petitioner/plaintiff filed a first appeal, which was also dismissed as not pressed on 06.12.2021 with liberty to file appropriate application assailing the compromise before the District Judge. 15. The learned District Judge, Sirohi after considering the provisions of Order XXIII Rule 3 CPC reached to the following conclusion: ^^gLrxr izdj.k esa izkFkhZ vkns'k 23 fu;e 3 ds varxZr izkFkZuk i= yk;k gS] ml fof/k dk Hkh voyksdu fd;k x;kA mijksDr fu;eksa ds izko/kku gLrxr izdj.k ij ykxw ugha gksrs gSA mijksDr fu;e ds varxZr oknh izkFkZuk&i= yk;k gS exj fnukad 07-07-2021] 10-07-2021 o 12-07-2021 dh vknsf'kdkvks ls Li"V gksrk gS fd mDr okn esa nkok yksd vnkyr dh Hkkouk ls jkthukek gks tkus ds dkj.k oknh okn ugha pykuk pkgrk vkSj fnukad 12-07-2021 dh yksd vnkyr ds }kjk mDr nkok tfj;s jkthukek QSly dj fn;k x;k FkkA yksd vnkyr ds Qslyksa ds fo:) vihy ugha ykbZ tk ldrh ;g fu;eksa vkSj lhihlh es Li"V gS tks U;kf;d n'"Vkar fo}ku vf/koDrk us is'k fd;k gS og /kkjk 151 lhihlh ds rgr dksbZ >wBk /kks[ks }kjk fd;k x;k le>kSrk gks mlds laca/k esa gS vkSj /kkjk 151 lhihlh ds rgr varjfufgr U;k;ky; dh 'kfDr;ksa ds ckjs esa mDr U;kf;d n'"Vkar bl izkFkZuk i= ds rF;ksa ij pLik ugha gksrs gS D;ksafd /kkjk 151 lhihlh ds rgr fn;s x;s izko/kku U;k;ky; esa varjfufgr izko/kku vkSj 'kfDr;ka rc dke esa yh tkrh gS tc ml laca/k esa dksbZ fu;e dkuwu uk cuk gqvk gksA izkFkZh ds izkFkZuk i= ds laca/k esa fu;e dkuwu cus gq, gS vkSj yksd vnkyr ds QSlys ds fo:) dksbZ vihy ugha dh tk ldrhA ;g Li"V izko/kku gS vxj izkFkhZ mDr Qslys ls okdhQ ugha j[krk rks oks mldh jhV dj ldrk Fkk exj mlus ,slk uk djds Qslyk fjdkWy djus dh nj[okLr yxkbZ gS D;ksa fd yksd vnkyr ds QSlys ds fo:) dksbZ vihy ugha dh tk ldrh vkSj /kkjk 151 lhihlh ds izko/kku Hkh mDr izkFkZuk i= ij ntZ fd;s tkus ;ksX; ugha ik;s tkrs gSA ,slh fLFkfr esa mDr izkFkZuk i= ntZ dh LVst ij gh QSly fd;k tkrk gS i=koyh fu;ekuqlkj ntZ QSly 'kqekj gksdj layXu ewy i=koyh jgsA^^ 16. The petitioner/plaintiff once having consciously entered into a compromise showing his inclination not to pursue the suit cannot question the execution of the same and based on that cannot seek recall of the decree passed by the court below. 17. This Court finds no force in the writ petition preferred by the petitioner and, therefore, the writ petition is dismissed. Stay Petition and pending misc. applications(s), if any, shall stand dismissed. No order as to costs.