Megha Thakur vs Shanker Dass & Ors
2021 Latest Caselaw 1759 j&K

             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU

                                                  Pronounced on : 28.12.2021


                                             CM(M) No. 30/2021
                                             CM No. 7458/2021
                                             Cav No. 1741/2021.


Megha Thakur                                      .....Appellant(s)/Petitioner(s)


                       Through: Mr. G.S. Thakur, Adv.


                  Vs


Shanker Dass & ors                                          ..... Respondent(s)


                       Through: Mr. R.S. Thakur, Sr. Adv. With
                                Mr. Ashwani Thakur, Advocate.


Coram:    HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

                                  JUDGMENT

28.12.2021

01. This is a petition under Article 227 of the Constitution of India,

challenging the order dated 28.8.2021 passed by the learned Judicial

Magistrate Ist Class (Sub Judge), Katra by virtue of which a civil suit

preferred by the petitioner under Order XXIII Rule 3-A of the CPC has been

dismissed.

02. Briefly stated the material facts, in the background of which the

present controversy has arisen, are as under:

03. A suit for partition by meets and bounds came to be preferred by

Anjana Rani, the mother of the petitioner against Shankar Dass and others.

The petitioner, who was a minor along with her sister-proforma respondent

No. 11-Wani Thakur filed the a suit through her natural guardian. During the

pendency of the suit, a compromise was arrived at between the parties and a

compromise decree dated 16.8.2018 came to be passed. The terms and

conditions of the compromise deed, which are reflected in the compromise

decree, are not material and, therefore, need not be referred to at this stage.

What is important to note here is the fact that upon attaining the

age of majority, the petitioner preferred an appeal on 29.3.2019 in the court

of learned District Judge, Reasi along with a condonation of delay application.

The appeal was withdrawn on 27.1.2021 on the ground that the appellant

would approach the trial court for appropriate redressal. Having withdrawn

the appeal and the application, the petitioner approached the trial court on

5.2.2021. What was filed by the petitioner was a "suit-cum-application" for

setting aside the judgment and decree dated 16.8.2018 under Order XXIII

Rule 3-A of the CPC.

04. What was stated before the trial court was that on the date when

the compromise decree was passed, she was a minor and that compromise

was sought to be made by the mother on behalf of the minor-petitioner and

further that the provisions of Order XXIII Rule 1 of the CPC had to be

followed, which was observed in breach.

It was stated that no leave of the court was obtained in terms of

Order 32 Rule 7 before entering into a compromise on behalf of the minor nor

was there any affidavit of the next friend and further that there was no

certificate of the pleader representing the minor and that the terms of

compromise whereby a part or whole of the claim was allowed was for the

benefit of the minor. Claiming that the compromise was in violation of the

provisions of the law, the decree was thus sought to be declared as null and

void.

05. The court of learned Judicial Magistrate Ist class (Sub Judge),

Katra by virtue of the order impugned dismissed the suit filed by the

petitioner primarily relying on the provisions of the Order XXIII Rule 3-A CPC

which envisages that no suit would lie to set aside a decree on the ground

that the compromise on which the decree is based was not lawful.

Reliance was also placed upon Order XXIII Rule 3 of the CPC to

show that the remedy, which was available, was not by way of a suit but by

way of an application under the said provision. It was also held that the

petitioner had concealed the fact that the petitioner herein had filed the

appeal and had withdrawn the same and that since no liberty had been

granted by the appellate court, the proceedings filed by the petitioner in the

nature of an "suit-cum-application" under Order XXIII Rule 3 of the CPC

were, thus, not maintainable.

06. Counsel for the petitioner challenges the order impugned primarily

on the ground that admittedly a civil suit, challenging the compromise

decree, was not maintainable in terms of the bar provided under Order XXIII

Rule 3-A of the CPC yet , it was stated that the trial court ought not to have

been swayed by the nomenclature of the proceedings filed before it especially

when the proceedings before the trial court were termed as "suit-cum-

application" under Order XXIII of the CPC and therefore, even if it is held that

the suit was not maintainable, yet it ought to have been treated as an

application and decided accordingly.

07. It was stated that the remedy of approaching the trial court by

way of an application was a remedy, which was available to the petitioner in

terms of Order XXIII Rule 3 of the CPC and, therefore, nothing prevented the

trial court from entertaining the suit of the petitioner especially in the light of

the specific issues raised regarding the legality of the compromise decree.

Reliance is also placed upon the Apex Court judgment in the case titled R.

Rajanna vs. S.R. Venkataswamy & ors, (2014) 15 SCC 471.

08. Since reference has been made to Order XXIII Rule 3 and Order

XXIII Rule 3-A CPC of the CPC, it would be beneficial to reproduce the same

for purposes of facility and clear understanding of the legal position:

Order XXIII Rule 3 CPC

Compromise of suit

"Where it is provided 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 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 Contract Act, Svt. 1977, shall not be deemed to be lawful within the meaning of this rule.]

Order XXIII Rule 3-A CPC

No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

09. Learned senior counsel for the respondents, Mr. R.S. Thakur, on

the other hand, urged that the view expressed by the trial court was perfectly

legal and justified in the facts and circumstances of the case. It was stated

that the suit admittedly was barred in view of the clear provisions of Order

XXIII Rule 3-A of the CPC and that notwithstanding the fact that the suit was

termed as "suit-cum-application" under Order XXIII Rule 3 CPC, it had to be

treated as a suit and since it was barred, it was rightly dismissed.

10. It was further stated that the application had to be filed

independently and had to be termed as such and that law did not envisage a

composite proceeding in the nature of a "suit-cum-application". Not only

this, it was further urged that the petitioner herein having availed the remedy

of appeal and having withdrawn it subsequently, would not be entitled in law

to avail the remedy of filing an application before the trial court for seeking

annulment of the compromise decree on the ground that it was based on an

agreement, which was not lawful.

11. Another point vehemently urged at the bar by the learned senior

counsel for the respondents was that in terms of proviso to Order XXIII Rule

3 of the CPC, the court can be called upon to decide the question regarding

the legality of the terms of a decree only where it is alleged by one party and

denied by the other that an adjustment or satisfaction has been arrived at. It

was stated that this is a stage prior to the passing of the decree and that

once a decree is passed, even the proviso to Rule 3 of Order XXIII of the CPC

has no application. It was, thus, urged that assuming the trial court were to

entertain the suit, treating it to be an application under Order XXIII Rue 3 of

the CPC, yet since the compromise decree had already been passed, the only

remedy available would be by way of appeal under the Civil Procedure Code

and not otherwise.

12. Reference has been made by the learned senior counsel to Apex

court judgment in case titled Sakina Sultanali Sunesara (Momin) vs. Shia

Imami Ismaili Momin Jamat Samaj, AIR 2020 Gujrat 12.

13. The issue which arises for consideration in the present petition is

no longer res-integra. In "Triloki Nath Singh Vs Anirudh Singh (Dead)

through Legal Representatives and others," reported in (2020)6 SCC

629, the Apex Court has lucidly discussed the entire concept and intent of

Order XXIII Rule 3 as also Rule 3-A at length. It was held that finality of

decisions was an underlying principle of all adjudicating fora and that the

scheme of Order XXIII Rule 3 CPC was to avoid multiplicity of litigation

allowing the parties to amicably come to a lawful settlement in writing,

reflecting the voluntary act on the part of the parties and further that Order

XXIII Rule 3-A was incorporated with a view to put an end to the various

disputes pending before the Court of competent jurisdiction once and for all.

14. It was also held that the right of appeal provided earlier under

Order 43 Rule 1(m) for challenging the validity of a compromise under Order

XXIII Rule 3 was no longer available, but a remedy was infact provided by

incorporating Rule 1-A to Order 43, enabling the parties to file an appeal

against the decree passed in the Court with a view to contest the decree on

the ground that the compromise should, or should not, have been recorded.

For facility of reference, Rule 1-A of Order 43 is reproduced hereunder:-

1-A. Right to challenge non-appealable orders in appeal against decree.--

(1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded."

15. In the present case, it appears that an appeal was infact preferred

against the judgement and decree in question, which was however,

subsequently withdrawn. However, in view of the specific bar created by

Order XXIII, Rule 3-A, certainly no independent suit would lie to question the

judgement and decree on the ground that a compromise on which the decree

was placed was not lawful.

16. A mere reading of the title of the suit would itself suggest that the

suit invoked the provisions of Order XXIII Rule 3-A of the CPC which itself

barred the remedy of an independent suit to the petitioner herein. The

suit/application would be of little relevance. Infact the only remedy, which

was available to the petitioner herein, was the remedy of filing an appeal in

terms of Order 43 Rule 1-A and none else, which remedy appears to have

been availed but later abandoned. In my opinion, the remedy if available in

terms of Order XXIII, Rule 3 is only available during the pendency of the suit

and not after a decree passed, as was urged by learned senior arguing

counsel for the respondents.

17. In that view of the matter, the view expressed by the Court below

does not appear to be in any manner perverse, which would warrant the

exercise of jurisdiction by the Court under Article 227 of the Constitution of

India. This petition is found to be without any merit and is accordingly,

dismissed along with connected application.

(Dhiraj Singh Thakur) Judge Jammu 28.12.2021 Muneesh

MUNEESH SHARMA 2021.12.30 11:18 I attest to the accuracy and integrity of this document