Rajasthan High Court - Jodhpur

State Of Rajasthan vs Yagya Datt Viduwa ... on 13 May, 2025

[2025:RJ-JD:23056-DB]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                   D.B. Spl. Appl. Writ No. 659/2025

1.       State of Rajasthan, through The Joint Secretary, to
         Government Department of Personnel (K-3/complaint)
         Secretariat, Jaipur, Rajasthan.
2.       The    Assistant        Secretary,        Department         of   Personnel
         (K-3/complaint) Secretariat, Jaipur, Rajasthan.
3.       The    Secretary,        Public      Works        Department      (P.W.D.),
         Government of Rajasthan, Jaipur, Rajasthan.
4.       The Chief Secretary, Public Works Department, Rajasthan,
         Jaipur.
5.       The Superintending Engineer, Public Works Department,
         Circle Kota, Rajasthan.
                                                                      ----Appellants
                                       Versus
1.       Yagya Datt Viduwa son of Shri Bipin Bihari Viduwa, aged
         about 58 Years, resident of 16, Ganesh Vihar, Near Ridhi
         Sidhi, Gopalpura, Bypass, Jaipur, Rajasthan.
2.       The Rajasthan State Road Development and Construction
         Corporation, through its Manager, Unit Banswara.
                                                                    ----Respondents


For Appellant(s)             :     Mr. Ayush Gehlot, AAAG to
                                   Mr. Rajesh Panwar, Sr. Advocate &
                                   AAG
For Respondent(s)            :     Mr. C.S. Kotwani with
                                   Mr. Abhijit Singh Charan, Advocates



      HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

HON'BLE MR. JUSTICE SANDEEP SHAH

Order

13/05/2025

Mr. C.S. Kotwani, the learned counsel appears on caveat for

the respondent.

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2. The order dated 12th January 2024 which starts with the

opening line "Both the learned counsels rely upon the judgment

rendered by a co-ordinate Bench" has been put to challenge by

filing the present Special Appeal.

3. Mr. Ayush Gehlot, the learned AAAG makes manifold

contentions as to applicability of the decision in S.B. Civil Writ

Petition No.18074/2018 titled "Sandeep Kumar Berar v. State of

Rajasthan & Anr." rendered by a learned Single Judge at Jaipur

Bench and submits that the case against the respondent, namely,

Yagya Dutt Viduwa is on an entirely different premise. The learned

AAAG apprises this Court that the non-applicability of the decision

in "Sandeep Kumar Berar" has been taken note of in other cases

vide D.B. Special Appeal Writ No.963/2021 and 964/52021 and

while forming a prima facie view a co-ordinate Bench at Jaipur

referred to the other decisions on the subject by the Hon'ble

Supreme Court.

4. In the order dated 12th January 2024 passed in S.B. Civil Writ

Petition No.19582/2023 titled "Yagya Dutt Viduwa v. State of

Rajasthan & Ors.", the writ Court made the following observations

while disposing of the said Writ Petition :-

"1. Both the learned counsels rely upon the judgment rendered by the Co-ordinate Bench of this Court in S.B. Civil Writ Petition No.18074/2018 [Sandeep Kumar Berar Vs. State of Rajasthan & Anr.] decided on 31.03.2022 and at the very outset submit that the case of the petitioner herein is squarely covered by the same as the facts and the issues involved herein are similar to those as in the case of Sandeep Kumar Berar (supra).

2. In view of the aforesaid consensus, the instant writ petition is also disposed of in the same terms as in Sandeep Kumar Berar (supra).

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3. Needless to say that the promotion of the petitioner shall be subject to final outcome of the criminal proceedings pending against him."

5. In our opinion, the present Special Appeal filed against the

consent order is not maintainable. If that is the case of the

appellants that the decision in "Sandeep Kumar Berar" is not

applicable rather quite distinguishable, the proper remedy for the

appellants is to approach the writ Court by filing appropriate

petition.

6. We are conscious that the provisions under the Code of Civil

Procedure are not strictly applied in a writ proceeding, but then, it

is well settled that the factors and principles akin to grant of

interim injunction, consent order, etc. are adopted by the writ

Court in the matters pertaining to similar subjects. When it is

projected before the Court that the claim is settled or satisfied or

adjusted, the Court may pass an order which shall be in the

nature of a consent order and no appeal shall lie against such an

order. Order XXIII Rule 3 of the Code of Civil Procedure reads as

under:

"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 satisfied the plaintiff in respect to 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:] 1[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.]

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1[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.]"

7. It is also well settled that the plea challenging the order

passed on the basis of consent of the parties needs to be filed

before the original Court, that is, the Court which passed the

original order. In "Manjunath Tirakappa Malagi and Anr. v.

Gurusiddappa Tirakappa Malagi", 2025 INSC 517, the Hon'ble

Supreme Court referring to a previous decision in "Pushpa Devi

Bhagat v. Rajinder Singh" (2006) 5 SCC 566 held as under:-

"12. The only remedy against a compromise decree is to file a recall application. This court in Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566 summed up the position of law as follows:

17. The position that emerges from the amended provisions of Order 23 can be summed up thus:

(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CrPC.

(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.

(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A.

(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.

Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court.

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The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is

made."

8. While so, we decline to entertain this Special Appeal which is

dismissed without reflecting on the merits of the matter and with

a liberty to the appellants to avail of remedy as available to them

in law.

9. D.B. Special Appeal Writ No.659 of 2025 is disposed of.

(SANDEEP SHAH),J (SHREE CHANDRASHEKHAR),J

81- Arjun/-