ORDER : 1. By the impugned order dated 21.9.2024 passed in Civil Misc. Case No. 325/2021, the trial Court has refused the prayer of the petitioner to set aside the compromise decree which was said to be obtained by fraud played by parties to the suit. 2. Respondent No.1 herein namely Smt. Rekha had brought Civil Original Suit No. 93/2012, renumbered as 12/2017 for partition of 1/3rd share in the property left by the father of the plaintiff namely Late Brij Kishore Ji Agrawal. The petitioner herein, Deepak Agrawal, is full brother of Rekha and respondent No.2, Kavita Gupta, is full sister of Rekha. The suit was filed against the petitioner and Kavita Gupta. 3. The plaintiff claimed in the suit that father had left three properties which were subject matter of partition. The first one was plot at Residency Road, Jodhpur on which a petrol pump of the family was/is running in the name of M/s. Ganeshi Lal & Sons. The second property was a building alongwith land at Mandore Road in the town of Jodhpur which was/is leased out to Hindustan Petroleum Ltd. The third one was plot at Kishore Bagh, Jodhpur which was already sold. 4. The petitioner and Kavita Gupta filed their separate written statement. Kavita in her written statement stated that when the petitioner was just aged about 22 to 23 years, their father died and both the sisters were unmarried. The petitioner got them married making huge expenses mentioned in the written statement. She further stated that the petitioner spent, on their marriage, more than the property left by the father. The property at Kishore Bagh and Mandore Road were already sold. In spite of that, these properties were included in the partition suit. The property at Kishore Bagh was sold to fulfill the needs of the plaintiff. She further asserted that as on date, neither the plaintiff nor respondent Kavita had any share in the remaining suit property at Residency Road, Jodhpur whereon a petrol pump is running. 5. It is worth to notice here that license for running the petrol pump was issued in favour of the father of the parties, Late Brij Kishore Agrawal, by the Urban Improvement Trust, Jodhpur with specific stipulation that the license shall be for installation of petrol pump only and for no other purpose. 5. It is worth to notice here that license for running the petrol pump was issued in favour of the father of the parties, Late Brij Kishore Agrawal, by the Urban Improvement Trust, Jodhpur with specific stipulation that the license shall be for installation of petrol pump only and for no other purpose. The licensee will not sub divide the site or construct any dwelling house over it and the petrol pump shall be installed within 3 years. After death of Late Brij Kishore Ji Agrawal on 29.8.1982, the petitioner Deepak Agrawal applied for license. In that matter, plaintiff Rekha Gupta filed affidavit dated 18.8.1998 stating therein that if Deepak Agrawal obtains proprietorship of the said petrol pump, she had no objection nor she would be liable for any loan etc. on the said petrol pump. She further stated that she would not claim any right on the said property. Likewise, Kavita Gupta also filed an affidavit on 7.8.1998 to the effect that she would not claim anything on the property of petrol pump nor she would be liable for any liability standing against the petitioner. Accordingly, on 18.6.2001, the Urban Improvement Trust, Jodhpur executed a lease deed in favour of the petitioner in respect of the petrol pump with enhanced license fee. Later on, Rekha Gupta filed the suit in the year 2012, claiming 1/3rd share over that. 6. Learned counsel for the petitioner submits that Rekha Gupta had not left the claim as mercy, rather, as a deal with the petitioner. The petitioner and his wife had transferred their self acquired property vide H-3 at Pal Road, Jodhpur by gift dated 8.10.1998 to Rekha in lieu of foregoing the claim over the land of petrol pump. Due to pendency of the litigation in Court vide the referred civil suit, the Hindustan Petroleum Ltd. was not ready to renew the license of the petrol pump. In the meantime, the petitioner was undergoing mental agony due to financial crunches. In the circumstance, the sisters agreed for disposal of the suit by a compromise so that license for petrol pump may be renewed. At the time of filing written compromise dated 9.7.2021, a new counsel was engaged, by the plaintiff, for the petitioner about whom the petitioner was neither aware nor the contents of compromise petition was read over to the petitioner when the petitioner had signed on the same. At the time of filing written compromise dated 9.7.2021, a new counsel was engaged, by the plaintiff, for the petitioner about whom the petitioner was neither aware nor the contents of compromise petition was read over to the petitioner when the petitioner had signed on the same. Learned counsel submits that once the sisters gave up their claim over the property on which the aforesaid petrol pump was running there was no question of partition of the property of petrol pump through a compromise.Moreover, the lease deed clearly stipulated for non-divisibility. 7. Learned counsel for the petitioner further submits that respondent Kavita Gupta, who has now joined hands with the plaintiff after denying the case and claim of the plaintiff in the written statement, had also executed a relinquishment deed dated 18.8.1998 much prior to the filing of the suit whereby she relinquished her right in the suit properties. Even the plaintiff has admitted that Kavita had no share in the suit property. Learned counsel for the petitioner further submits that the plaintiff had approached Urban Improvement Trust, Jodhpur by filing an application for partition of the plot at Residency Road, Jodhpur on which petrol pump was there. The authorities divided the property into two parts which was challenged by the petitioner and when the authorities realized that the property was not divisible as per condition of grant of license for petrol pump, they recalled the said order, then the suit was filed. 8. Learned counsel for the respondents submits that the petitioner asserts that he had gifted plot no. H-3 with house erected over that near Luni Panchayat Samiti, Pal Road, Jodhpur to the plaintiff through gift. In fact, the said property was purchased and house was constructed from the money of the husband of the plaintiff who was NRI at that time, therefore, said plot was not given in lieu of share of the plaintiff in the suit property. Learned counsel for the respondents contends that the petition for setting aside compromise decree was filed after lapse of 4 months just to harass the sisters, who had asserted their right over the suit property. Learned counsel for the respondents contends that the petition for setting aside compromise decree was filed after lapse of 4 months just to harass the sisters, who had asserted their right over the suit property. Moreover, the petitioner has sold a portion of the property on which petrol pump is running, after compromise decree, to one Tayab Ansari through registered sale deed dated 8.2.2023, which goes to show that compromise was not obtained by fraud.On perusal of the sale deed aforesaid dated 8.2.2023, it is evident that there is no mention that the petitioner had claimed the said property through partition in the compromise decree. 9. Since the plaintiff has admitted in her deposition in the civil suit that the property gifted to her was purchased by her brother and bhabhi jointly through registered sale deed and she had not seen the sale deed, the contention that in fact, the said property was purchased from the fund provided by the husband of the plaintiff in not acceptable especially when the provisions of Benami Transactions Act prohibits any claim or defence based on benami transaction. Only for the reason that there is delay of 4 months in filing of the petition by the petitioner for recall of compromise decree would not make the impugned order sustainable especially when claim of the petitioner is that his signature was obtained without getting the document read over to him. 10. The compromise petition dated 9.7.2021 was filed in the civil suit. On the same day, at the request of the parties, the Court referred the matter to the National Lok Adalat scheduled on 10.7.2021. On 10.7.2021, the National Lok Adalat recorded that compromise petition was read over to the parties which they accepted as true and correct. Accordingly, the compromise was accepted and Court fee was returned to the plaintiff. The compromise petition was made part of the award. Thereafter, the matter was transmitted to the trial Court and the trial Court on 15.7.2021 issued preliminary decree in pursuance of the compromise between the parties. 11. The petitioner challenged the aforesaid decree on the ground of fraud played upon by the plaintiff and respondent Kavita Gupta on the petitioner. The compromise petition was made part of the award. Thereafter, the matter was transmitted to the trial Court and the trial Court on 15.7.2021 issued preliminary decree in pursuance of the compromise between the parties. 11. The petitioner challenged the aforesaid decree on the ground of fraud played upon by the plaintiff and respondent Kavita Gupta on the petitioner. The impugned order reveals that the Court was of the view that since the impugned compromise decree has been passed by the Lok Adalat, the same is challengeable in a writ petition under Article 226 and 227 of the Constitution of India. The Court did not record whether the claim of the petitioner regarding fraud in obtaining the compromise decree was established or not. Order XXIII Rule 3 which relates to compromise of the suit is being reproduced below:- “ 3. Compromise of suit - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject- matter of the agreement, compromise or satisfaction is the same as the subject-matter of the 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 reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]” It is evident that the fact that the parties had entered into a lawful agreement must be proved to the satisfaction of the Court accepting the compromise. It is further evident from the explanation aforesaid that an agreement or compromise which is void or voidable under the Contract Act shall not be deemed to be lawful within the meaning of this Rule. It is further evident from the explanation aforesaid that an agreement or compromise which is void or voidable under the Contract Act shall not be deemed to be lawful within the meaning of this Rule. A compromise obtained by fraud is voidable and as such not lawful within the meaning of this Rule, therefore, once a party alleges that the compromise was obtained by fraud, the Court was required to record satisfaction regarding non availability of a case of fraud which has not been done by the Court before whom prayer for setting aside the compromise decree was made. 12. In Banwari Lal Vs. Chand Devi, 1993 (1) SCC 581 and quoted in Navratan Lal Sharma Vs. Radha Mohan Sharma & Ors., 2024 INSC 970 , the Hon’ble Supreme Court said that under Order XXIII Rule 3, the Court must be satisfied upon applying judicial mind that the agreement between the parties is lawful before accepting the same and disposing of the suit. The Court further clarified that void and voidable agreement under the Indian Contract Act shall be deemed to be not lawful. Evidently, the Lok Adalat or the Court concerned should have sought for affidavit of the parties in support of the compromise or should have recorded their statement in support of factum of compromise or should have collected other material for satisfaction that the compromise was lawful which was not done in the case on hand. On the basis of averment made by the petitioner narrated above, it cannot be said that prima facie, there was no case for claiming any fraud played by the party to the compromise petition against the petitioner especially when they have already forgone their claim over the suit property prior to filing of the suit only after getting due reimbursement in the nature of gift of immovable property from the petitioner and his wife. 13. In Navratan Lal Sharma (supra), the Hon’ble Supreme Court reiterated that under Order XXIII Rule 3, the Court bears the duty to examine this issue and be satisfied that the agreement or compromise is lawful. The proviso explicitly obligates the Court that entertains the petition of compromise to determine this issue, and as per the law laid down by this Court in Banwari Lal (supra) this issue can be agitated by way of a recall application even after the compromise decree has been passed. 14. The proviso explicitly obligates the Court that entertains the petition of compromise to determine this issue, and as per the law laid down by this Court in Banwari Lal (supra) this issue can be agitated by way of a recall application even after the compromise decree has been passed. 14. Evidently, the applicant was justified in agitating the issue of recall of compromise decree on the ground that it was obtained by fraud and the Court below was obliged to determine this issue while rejecting the prayer. The impugned order manifestly leads to miscarriage of justice. Hence, the same stands hereby quashed and this writ petition stands allowed. 15. It is evident that the compromise petition was filed in the Court in the referred civil suit on 9.7.2021. The Court was required to record satisfaction regarding lawfulness of the compromise as per Order XXIII Rule 3 CPC. Without doing that the trial Court referred the matter to the National Lok Adalat. It was not necessary to refer the compromise petition to the Lok Adalat, rather, the pending disputes are usually referred to the Lok Adalat and the Lok Adalat on consensus of the parties passes the award which is to be signed by the parties who expressed their consensus. In the case on hand, the Lok Adalat simply on the basis of written compromise, recorded on 10.7.2021 that the parties have accepted the compromise of the case. Accordingly, on 15.7.2021, the trial Court passed preliminary decree. Since all the aforesaid orders were passed without following mandate of law, the same stands quashed. Likewise, the prayer of the petitioner for recall of compromise decree was refused by the trial Court vide order dated 21.9.2024 without application of mind that requirement of law has not been followed. Hence, the same also stands set aside. 16. In the result, the impugned order and compromise decree stands hereby set aside and the matter is remitted back to the trial Judge to proceed according to law. 17. It is made clear that if a party insist for disposal of the suit on the basis of compromise, the Court shall conduct an enquiry regarding claim of fraud and lawfulness of the compromise petition and shall pass necessary order according to law, or proceed with the trial according to law.