Akhtar Hussain vs Noushad
2023 Latest Caselaw 14541 MP

                                                       1
                            IN    THE    HIGH COURT OF MADHYA PRADESH
                                               AT INDORE
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
                                          ON THE 5 th OF SEPTEMBER, 2023
                                          SECOND APPEAL No. 1092 of 2022

                           BETWEEN:-
                           AKHTAR HUSSAIN S/O HASEENUDDIN, AGED ABOUT 53
                           Y E A R S , OCCUPATION:  AGRICULTURE     R/O
                           MUGHALPURA TESHIL JAORA (MADHYA PRADESH)

                                                                                 .....APPELLANT
                           (BY SHRI A.S. PARIHAR - ADVOCATE FOR THE APPELLANT)

                           AND
                           1.    NOUSHAD S/O HASEENUDDIN, AGED ABOUT 37
                                 YEARS, OCCUPATION: LABOR R/O SAGARPESHA
                                 TEHSIL JAORA (MADHYA PRADESH)

                           2.    NAJIM HUSSAIN S/O HASEENUDDIN, AGED
                                 ABOUT 38 YEARS, OCCUPATION: MECHANIC
                                 MUGHALPURA (MADHYA PRADESH)

                           3.    NUJAHATIJANHA W/O SAFDAR KHAN, AGED
                                 ABOUT 38 YEARS, OCCUPATION: GOVERNMENT
                                 SERVANT MUGHALPURA (MADHYA PRADESH)

                           4.    SAMEENAJANHA @ SHABEENAJANHA W/O
                                 MUNNA KHAN, AGED ABOUT 36 YEARS,
                                 OCCUPATION: HOUSE WORK GAADIKHANA
                                 (MADHYA PRADESH)

                           5.    JEENATJAHA D/O HASEENUDDIN, AGED ABOUT
                                 35    YEARS, OCCUPATION: HOUSE    WORK
                                 MUGHALPURA (MADHYA PRADESH)

                           6.    IQBALJANHA W/O LATE HASEENUDDIN, AGED
                                 ABOUT 68 YEARS, OCCUPATION: HOUSE WORK
                                 UDASI KI BADI (BARGUNDAPURA) (MADHYA
                                 PRADESH)

                           7.    SANWWARJANHA W/O SHARIF KHAN, AGED
                                 ABOUT 48 YEARS, OCCUPATION: HOUSE WORK
Signature Not Verified
                                 GRAM BHAUGADH (MADHYA PRADESH)
Signed by: RASHMI
PRASHANT
Signing time: 08-09-2023
12:14:36
                                                             2

                           8.    ISHARATJANHA W/O MUSTUFA, AGED ABOUT 43
                                 YE A R S , OCCUPATION: HOUSE WORK GRAM
                                 BARAKHEDA (MADHYA PRADESH)

                           9.    MUSTAQ    MOHAMMAD       S/O    KAMMAL
                                 MOHAMMAD,     AGED   ABOUT   73   YEARS,
                                 OCCUPATION: BUSINESS MOHALLA KASAIPURA,
                                 MOGAT DHANA KE PASS (MADHYA PRADESH)

                           10.   JAGDISHCHANDRA S/O BADRILAL CHOUDHARY,
                                 AGED ABOUT 61 YEARS, OCCUPATION: BUSINESS
                                 DATT MANDIR KE PASS, NAI ABADI MANDSAUR
                                 (MADHYA PRADESH)

                           11.   SMT. SUMITRA DEVI W/O JAGDISHCHANDRA
                                 CHOUDHARY,   AGED   ABOUT   53 YEARS,
                                 OCCUPATION: HOUSE WORK DATT MANDIR KE
                                 PASS, NAI ABADI MANDSAUR (MADHYA
                                 PRADESH)

                           12.   MOHAMMAD AKRAM KHAN S/O MOHAMMAD
                                 ASHRAF KHAN, AGED ABOUT 40 YEARS,
                                 OCCUPATION:  AGRICULTURE SAGARPESHA
                                 (MADHYA PRADESH)

                           13.   MOHAMMAD ASLAM KHAN S/O MOHAMMAD
                                 AKRAM KHAN, AGED ABOUT 38 YEARS,
                                 OCCUPATION:  AGRICULTURE SAGARPESHA
                                 (MADHYA PRADESH)

                           14.   STATE OF M.P. THROUGH COLLECTOR RATLAM
                                 (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (BY SHRI M.A. MANSOORI - ADVOCATE FOR RESPONDENTS NO. 1 TO 3. )

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                             ORDER

Heard on the question of admission.

2. This appeal has been preferred against the judgment and decree dated 15.03.2022 passed in Regular Civil Appeal No. 61/2018 by First Additional District Judge, District Ratlam, whereby the judgment and decree dated Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-09-2023 12:14:36

25.07.2018 passed in Civil Suit No. 7-A/2000 by IInd Civil Judge, Class-II Jaora, District Ratlam has been set-aside and the suit has been allowed to be compromised between the plaintiff and other defendants except defendant No. 1, who is the appellant in the present appeal.

3. Brief facts of the case are that plaintiff /respondent Nos. 1 to 5 filed a suit for declaration of title, injunction and consideration of title. The aforesaid suit was decreed on 25.07.2018 against which the appeal was preferred by the defendants No.5 and 6 only and during pendency of the appeal an application was also filed by the parties under Order 23 Rule 3 of the CPC for entering into compromise which has been allowed by the District appellate Court taking into account the written statement filed by defendant No.1 holding that the defendant No.1 has opposed the plaint. No appeal has also been preferred by defendant No.1 against the original judgment and decree, hence the suit has been allowed to be withdrawn.

4. Learned counsel for the appellant has submitted that the learned Judge of the District Appellate Court has erred in allowing the application for compromise and that too without the consent of defendant No.1. It is also submitted that the aforesaid compromise entered into between other parties is not binding upon the respondent No.1, hence the application ought not to have been allowed.

5. On due consideration of the statement and perusal of the record it is found that the defendant No.1 has filed a separate written statement diverging the averments made in the plaint specifically denying the relief sought by the plaintiff and also not filing any counter claim. It is also found that after decree was passed the defendant No.1 has also not preferred any appeal against the aforesaid judgment and decree. Meaning thereby, the defendant was not Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-09-2023 12:14:36

aggrieved by the judgment and decree and was also opposed to the plaintiff itself. Hence, in such circumstances, this Court does not find any illegality or judicial error committed by the learned judge of appellate Court in allowing the application filed under Order 23 Rule 3 of the CPC which can certainly be filed at the appellate stage, which is a trite law. It is also found that by allowing the plaintiff to withdraw the suit no prejudice is caused to defendant No.1 as he has not only opposed the suit but has also not filed any counter claim or an appeal against the impugned judgment and decree.

6. In view of the aforesaid, this Court is of the considered opinion that no substantial questions of law falls for consideration of this Court.

7. Accordingly, admission is declined and the second appeal being devoid of merits, is hereby dismissed.

(SUBODH ABHYANKAR) JUDGE rashmi

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 08-09-2023 12:14:36