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2025 DIGILAW 587 (HP)

Rameshwar Dass v. Sunder Dev

2025-04-02

SATYEN VAIDYA

body2025
JUDGMENT : Satyen Vaidya, J. By way of instant petition, the petitioner has assailed orders dated 21.01.2023 passed by learned Civil Judge (Senior Division), Kinnaur District at Reckong Peo in Civil Suit No. 14 of 2015. 2. The respondents herein have filed Civil Suit No. 14 of 2015 on the files of learned Civil Judge (Senior Division), Kannuar. Petitioner herein is the defendant in the said suit. For convenience, the parties hereafter shall be referred by the same status as they hold before the learned trial Court. 3. The plaintiffs have filed a suit for declaration that they are owners in possession of the land comprised in Khata/Khatoni No. 33 min 55, Khasra Nos. 871 and 872, Kitas 2, measuring 0-04-19 hectares situated in Up-Muhal Kupa, Tehsil Sangla, District Kannuar, H.P. (“for short “suit land”) and the name of defendant recorded in the column of possession in the revenue records as “Sathania niwasi Bila Sifat” is null and void. A decree of permanent prohibitory injunction seeking to restrain the defendant from interfering in the suit land has also been claimed. 4. The defendant is contesting the suit. His main plank of defence is that the defendant has perfected the title over the suit land by adverse possession. 5. During the pendency of suit, a deed of compromise came to be executed between the plaintiffs and defendant on 01.08.2016. It was agreed by the plaintiffs that they had no objection if the suit land was transferred in the name of defendants on the basis of deed of compromise and that in future the plaintiffs or their legal heirs/successors will have no right to initiate any legal proceedings against the defendant in respect of the suit land. To reciprocate, the defendant agreed to withdraw the complaint filed against plaintiff No.1 Shri Sunder Dev with his employer HPSEB Ltd. and that defendant or his legal heirs/successors would not file any further complaint against plaintiff No.1 before any authority pertaining to the subject matter of the complaint filed with HPSEB. It was also recorded in the deed of compromise that the parties shall pray to the Court to decide the suit as per the compromise deed of the parties. 6. All the parties to the suit appended their signatures on the deed of compromise which was witnessed by two witnesses namely S/Sh. Ravinder Kumar and Om Prakash. 7. It was also recorded in the deed of compromise that the parties shall pray to the Court to decide the suit as per the compromise deed of the parties. 6. All the parties to the suit appended their signatures on the deed of compromise which was witnessed by two witnesses namely S/Sh. Ravinder Kumar and Om Prakash. 7. The deed of compromise was presented in the Court on 01.08.2016 as Ex. PA. Learned trial Court recorded the statements of the parties and thereafter referred the matter to Lok Adalat which was scheduled to be held on 27.08.2016. Since, Lok Adalat did not assemble on 27.08.2016, the matter was taken up by the learned trial Court on 06.09.2016, on which date plaintiff No.1 filed an application under Order 23, Rule 3 of the Code of Civil Procedure ( for short “the Code”) seeking leave of the Court to withdraw from the compromise. It was averred in the application that on inquiry and advice from the elders and from Advocate, plaintiff No.1 had come to know that the comprise was void under Indian Contract Act. Further, the defendant was imposing the condition that plaintiff No.1 was to bear the registration charges necessary for transfer of the suit land in favour of defendant and for such reasons, plaintiff No.1 intended to withdraw his consent for the passing of compromise decree and wanted to pursue the suit in accordance with the established procedure. 8. Defendant filed reply to the aforesaid application on 24.03.2017 inter alia raising objections that plaintiff had no right to resile and the allegations of plaintiff No.1 that defendant was pressing upon the said plaintiff to bear registration charges was incorrect. It was also denied that the compromise between the parties was void. The defendant further admitted to have filed an application against plaintiff No.1 on the basis of true facts which according to defendant was being investigated by the employer of plaintiff No.1. He also submitted that the compromise deed was executed with free will and volition of the parties to the suit without any undue influence, threat, coercion or duress. 9. Before any adjudication could be made on the aforesaid application by the Court, plaintiff No.1 withdrew the application on 19.02.2109. Thereafter the suit proceeded and plaintiffs led their evidence. He also submitted that the compromise deed was executed with free will and volition of the parties to the suit without any undue influence, threat, coercion or duress. 9. Before any adjudication could be made on the aforesaid application by the Court, plaintiff No.1 withdrew the application on 19.02.2109. Thereafter the suit proceeded and plaintiffs led their evidence. At the stage, when the suit was fixed for evidence of defendant, an application came to be filed on 22.12.2021 by the defendant with a prayer to enforce the compromise dated 01.08.2016 and for passing of decree on its basis. Plaintiffs filed reply to the said application on 13.01.2022 and further rejoinder was filed by defendant on 06.05.2022. Before the above noted application could be decided, plaintiff No.1 filed yet another application under Order 23, Rule 3 of the Code on 15.10.2022 seeking permission to withdraw from the compromise dated 01.08.2016. This time the grounds raised by plaintiff No.1 were that the defendant had filed an application to enforce the compromise; compromise was void and defendant was still continuing to pursue his complaint against plaintiff No.1 with HPSEB Ltd. 10. The defendant filed reply to the said application on 13.12.2022 stating inter alia that he had withdrawn the complaint on 01.08.2016 and for such reason the department had taken no action against plaintiff No.1, who had retired from service and had received the retiral benefits. 11. Learned trial Court vide impugned orders has decided both the applications. Application of plaintiff No.1 has been allowed and the application of defendant has been dismissed for the same reasons. Learned trial Court has held that the compromise deed was filed without an application with prayer to pass a decree on the basis of compromise. The Court had not applied its mind and the Court does not become functus ofÏcio until it applies judicial mind to rule out the illegality, if any, in the compromise. Apparently, learned trial Court made such observations keeping in view the provisions of Order 23, Rule 3 of the Code which vests the Court with jurisdiction to pass the decree after being satisfied that the suit has been adjusted wholly and in part by any lawful agreement or compromise in writing and signed by the parties. 12. Learned trial Court has further found that the plea of defendant regarding withdrawal of complaint stood belied. 12. Learned trial Court has further found that the plea of defendant regarding withdrawal of complaint stood belied. Such a conclusion has been drawn by recording the submission made by learned counsel for the plaintiffs to the effect that according to RTI information received by him the complaint had not been withdrawn by the defendant. 13. Thereafter, the learned trial Court proceeded to hold that since the compromise deed was not accompanied by a separate application under Order 23, Rule 3 of the Code, the Court was not under an obligation to bring compromise Ex.PA to logical conclusion with ex post facto effect particularly when plaintiff No.1 had filed an application under Order 23, Rule 3 of the Code for withdrawal from the compromise. 14. I have heard learned counsel for the parties and have also gone through the entire record carefully. 15. Shri Bhupender Gupta, learned Senior Advocate for the defendant contended that the observations made by the learned trial Court to the effect that the defendant had not withdrawn the complaint was without any substance as there was no corresponding document before the Court to hold so. He further contended that the second application for withdrawn of consent to seek compromise decree was hit by principle of res judicata. Further, he argued that the compromise deed Ex.PA itself contained joint prayer of the parties for passing a decree in terms of compromise and hence there was no requirement to file a separate application under Order 23, Rule 3 of the Code seeking such a relief. 16. On the other hand, learned counsel for plaintiff No.1 has controverted the contention raised on behalf of defendant by making a reference to document dated 08.09.2016 finding place at page 92 of the record of learned trial Court. He pointed out from said document that the defendant had made a complaint against plaintiff No.1 to HPSEB Ltd. on 21.12.2015. Defendant filed an application dated 01.08.2016 with HPSEBL seeking to withdraw his complaint. However, later by letter dated 08.09.2016 he withdraw his application dated 01.08.2016 meaning thereby that defendant continued to pursue his complaint against plaintiff No.1 with his employer HPSEBL. On this count, he asserted that the findings recorded by the learned trial Court was not without substance, and in fact, plaintiff No.1 had valid reason to withdraw his consent for disposal of the suit on the basis of compromise Ex.PA. 17. On this count, he asserted that the findings recorded by the learned trial Court was not without substance, and in fact, plaintiff No.1 had valid reason to withdraw his consent for disposal of the suit on the basis of compromise Ex.PA. 17. As noticed above, the application for withdrawal of consent to compromise the suit was filed by plaintiff No.1 on 06.09.2016. Defendant had made representation dated 08.09.2016 to HPSEB Ltd. for revocation of his consent to withdraw complaint dated 21.12.2015. Because the application dated 08.09.2016 of the defendant was subsequent in time, the application for withdrawal of consent dated 06.09.2016 of plaintiff No.1 did not contain the ground that defendant had refused to perform his part of the commitment. His simplicitor ground was that the compromise was void and for such reason he did not want to abide by its terms. 18. On 19.02.2019, the plaintiff No.1 had withdrawn the application filed by him under Order 23, Rule 3 of the Code seeking to withdraw his consent for compromise. Learned trial Court had recorded a separate statement. Record of the learned trial Court reveals that the statement was made by learned counsel for the plaintiff on 19.02.2019, which reads as under:- “Stated that I withdraw the application under Order 23 for withdrawal from compromise.” 19. The explanation rendered by plaintiff No.1 for such withdrawal is that he had an understanding that after withdrawal, the suit would proceed on merits. 20. It was in the second application filed by plaintiff No.1 for withdrawal of consent to compromise the suit filed on 15.10.2022 that he made an allegations that defendant was still continuing to pursue the complaint. As it has been noticed above that defendant had though submitted an application to HPSEB to withdraw his complaint but the same was withdrawn by a separate application dated 08.09.2016, thus, it cannot be said that plaintiff No.1 had filed the application for withdrawal of consent to compromise the suit without any reason. 21. Now the question arise whether plaintiff No.1 could file second application after withdrawal of his first application or such action of plaintiff No.1 would be hit by principle of res judicata. 21. Now the question arise whether plaintiff No.1 could file second application after withdrawal of his first application or such action of plaintiff No.1 would be hit by principle of res judicata. In my considered view, the second application of plaintiff No.1 would not be barred simply because he had not withdrawn his earlier application for the reason that the defendant was pursuing his complaint before the HPSEB and secondly, since there was no adjudication on any issue on merits, the simplicitor withdrawal of the application would not amount to res judicata. Plaintiff No.1 after coming to know about the fact that defendant was still pursuing the complaint against him, had valid reason to file the second application. 22. There is no rule of law that a party to the suit cannot withdraw his consent once he had agreed on certain terms for settlement of suit. Though, sanctity has to be attached to the commitment made by the parties in the Court, yet in cases where a party can justify his action for withdrawal, no estoppel applies against him. The compromise Ex.PA had only two reciprocal conditions. The first was that plaintiff had agreed to give up their claim on the suit land in favour of the defendant and in lieu thereof defendant had agreed to withdraw the complaint filed by him before the employer of plaintiff No.1. Once, defendant had failed to perform his part, he could not enforce the other part against the plaintiffs. 23. This Court does not concur with the reason rendered by the learned trial Court that the said Court could not consider the effect of compromise Ex.PA in retrospect. That eventuality would have arisen in case the defendant had been able to show that he had performed each and every reciprocal promise and thus would have shown his entitlement to enforce the compromise against the plaintiffs. Similarly, this Court also does not concur with the learned trial Court on the finding that since there is no application under Order 23 Rule 3 of the Code with a prayer to pass a decree in terms of compromise Ex.PA, the Court was not bound to deal with the said prayer. I am of the considered view that there is no requirement to file separate application seeking prayer to pass a decree in the suit on the basis of compromise. I am of the considered view that there is no requirement to file separate application seeking prayer to pass a decree in the suit on the basis of compromise. Such prayer can be made even orally by presenting the terms of compromise which should be in writing and signed by the parties. In the facts of the case at hand, there was a specific prayer to that effect in the compromise Ex.PA itself which was presented in the Court. 24. However, in view of the fact that defendant had continued to pursue his complaint against plaintiff No.1, his ground to back out from the promise, cannot be termed as unreasonable or unjustified. Therefore, this petition fails despite this Court recording disagreement on certain findings recorded in the impugned order. 25. In light of above discussion, there is no merit in the petition and the same is dismissed. The suit before the learned trial Court will proceed on its own merits and the effect of compromise deed, if any, on the merits of the claim of the plaintiff will be independently adjudicated by the learned trial Court while disposing of the suit. Petition is accordingly disposed of. Records be sent back forthwith. 26. Pending applications, if any, also stand disposed of.