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Mst. Shujarat and anr. Vs. Mohammad Raza - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 428 of 1952
Judge
Reported inAIR1957All450
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 23, Rule 3
AppellantMst. Shujarat and anr.
RespondentMohammad Raza
Appellant AdvocateK.C. Saksena, Adv.
Respondent AdvocateRama Shanker and ;M.N. Shukla, Advs.
DispositionApplication dismissed
Excerpt:
.....must find whether there is agreement or not. - - on the other hand, all that he had agreed to was that he would maintain his wife, treat her well, and send her to her parents' home whenever so desired by them. the court, before it will proceed to record the agreement, or pass a decree in accordance therewith, will require to be satisfied that the agreement pleaded by any party has in fact been reached. as we pointed out earlier also, the question whether the agreement is lawful or not and can be avoided by any party thereto on grounds of undue influence, coercion, or the like, is a different matter. we do not consider that the lower courts in arriving at the finding had failed to exercise their jurisdiction or acted with material irregularity......under order xxiii, rule 3, enter into an enquiry as to whether the agreement relied upon was in fact reached or not between the parties. an agreement reached between the parties through fraud, coercion or un-due influence is voidable at the option of the party defrauded or induced. an enquiry whether the agreement was so induced is an enquiry collateral to the terms of the agreement, and it was considered that order xxiii rule 3 was not intended to arm the court with the power to go into those complicated questions in those proceedings. it is unnecessary for us to express any opinion on that question, although we are disposed to think that the provisions of order xxiii, rule 3 do not place any such restriction on the power of the court. however, as it is unnecessary for the decision.....
Judgment:

Tandon, J.

1. The facts revealed in this revision are briefly as follows:

2. The plaintiff Mohammad Raza, who is the opposite party, brought a suit for restitution of conjugal rights against Smt. Shujarat, his wife. After the suit had proceeded for sometime an application was presented on behalf of the defendant applicant that the dispute in the suit had been adjusted between the parties by a compromise reached between them, and that according to the compromise the defendant had been divorced by the plaintiff. A writing was also produced which, according to the defendant, the plaintiff had executed.

It was Ex. A-1 and was in the nature of a deed of divorce. The plaintiff disowned this document and urged that his signatures had been taken on a blank sheet of paper which later appeared to have been dishonestly utilized by the opposite party to forge the above document There was thus very specific and definite denial' by the plaintiff that he ever entered into any agreement divorcing Srimati Shujarat, or that the document which purported to have been made by him was ever executed by him in fact.

3. The trial Court went into the question, after taking necessary evidence whether the husband had in fact agreed to divorce the wife and whether the deed of divorce was executed by him. The trial Court found in favour of the plaintiff that he had not entered into any such agreement or adjustment. The Appellate Court also came to the same conclusion.

4. The allegation by the plaintiff so far as the deed of divorce relied upon by the wife was concerned, was that after filing the suit he had been called by his father-in-law who was defendant No. 2, to Taligram for settling the dispute. He went there and was told by the father-in-law that he could take his wife with him provided he executed an agreement that he would send her to his place whenever so desired by him, and would also keep her comfortably. He agreed to the above suggestion of his father-in-law who then asked him to get a stamp paper.

The plaintiff brought the stamp paper and gave it to his father-in-law, but as it was getting late to catch the train he was assured by his father-in-law that he would get the necessary document scribed on it. He was also asked to affix his signature on the blank sheet to which, he readily agreed, particularly as there was little time left for the departure of the train and he was anxious to leave with his wife.

5. It would appear from the above allegations that according to the plaintiff there was never any agreement to divorce; on the other hand, all that he had agreed to was that he Would maintain his wife, treat her well, and send her to her parents' home whenever so desired by them. The defendant's case, on the other hand, was that there was in fact an agreement divorcing her and the document, the deed of divorce, was in fact executed by the plaintiff as such a deed.

6. It was to record the above adjustment, which according to the defendant had been reached by the plaintiff with her, that the application under Order XXIII, Rule 3 had been made. Both the Courts accepted the plaintiff's version and found that there was never any adjustment as pleaded by the defendant. The application under Order XXIII, Rule 3 by the defendant was accordingly' dismissed. The present revision is directed against the order of the lower Court refusing to record the adjustment pleaded by the wife.

7. This revision originally came up for hearing before one of us. It was pointed out then on, behalf of the applicant that the enquiry under Order XXIII, Rule 3 was a limited one, and it was not open to the Courts below to go into the question of fraud. Reliance was placed on a decision of this Court reported in Husain Yar Beg v. Radha Kishan : AIR1935All137 . Reference was also made to another decision reported in Union of India v. S. Raghubir Saran : AIR1957All120 in which the view expressed in the earlier case was doubted. In view of the above conflict, and also the fact that the decisions of other High Courts also were in favour of the view held in : AIR1935All137 , the case was directed to be laid before a Division Bench,

8. The learned counsel for the applicant has placed before us the case decided in Qadri Jahan Begam v. Fazal Ahmad : AIR1928All494 and another case by a Division Bench reported in : AIR1935All137 . These were cases in which the making of an agreement between the parties was not disputed. The complaint there was that the agreement had been induced through fraud and undue influence. It was held that Order XXIII, Rule 3 did not authorise an enquiry into disputed facts collateral to the terms of the compromise or as to how the agreement itself was induced. These cases are no authority for the proposition that the Court cannot, in proceedings under Order XXIII, Rule 3, enter into an enquiry as to whether the agreement relied upon was in fact reached or not between the parties. An agreement reached between the parties through fraud, coercion or un-due influence is voidable at the option of the party defrauded or induced.

An enquiry whether the agreement was so induced is an enquiry collateral to the terms of the agreement, and it was considered that Order XXIII Rule 3 was not intended to arm the Court with the power to go into those complicated questions in those proceedings. It is unnecessary for us to express any opinion on that question, although we are disposed to think that the provisions of Order XXIII, Rule 3 do not place any such restriction on the power of the Court. However, as it is unnecessary for the decision of the present case to decide that question, we have refrained from discussing it further.

9. So far as the case before us is concerned, the main question for decision before the Courts below was whether the alleged agreement, which was set up by the defendant and denied by the plaintiff, was in fact arrived at between them. Order XXIII. Rule 3 says that:

'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.... the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit'.

The rule requires a Court, when it is pointed out to it that the suit has in whole or in part been adjusted by a lawful agreement to record that agreement, and to pass a decree accordingly. The Court, before it will proceed to record the agreement, or pass a decree in accordance therewith, will require to be satisfied that the agreement pleaded by any party has in fact been reached.

Whether the agreement so reached between the parties is voidable or can otherwise be avoided by any party thereto on any other ground, is a different matter than the fact whether the agreement itself has been reached between them The jurisdiction conferred by Rule 8 requires a Court to satisfy itself whenever any agreement is pleaded before it that it has been reached or not. Not until that decision has been reached by the Court that the other steps required to be carried out by this Rule can be gone into.

The Court must find, whenever there is a dispute between the parties, whether the agreement has really been arrived at or not. Without this finding it will be impossible for the Court to record a compromise, much less to pass a decree to accordance therewith. The whole purpose of Rule 3 will be lost if the Court is deprived of the power to decide whether the agreement pleaded by a party has been reached or not. If the Court is deprived of that power, it will enable any dishonest litigant to get away from a compromise reached by him freely and lawfully merely by pleading that he had not done so. That could never be the intention of the Legislature.

As we pointed out earlier also, the question whether the agreement is lawful or not and can be avoided by any party thereto on grounds of undue influence, coercion, or the like, is a different matter. These considerations can, in effect, arise only subsequently after a finding has been reached that the agreement pleaded by a party was otherwise reached between them. In the present case all that the Courts below did was to decide whether the agreement set up by the defendant, but which was disowned by the plaintiff, was in fact arrived at between them.

They found upon a consideration of the evidence that the plaintiff's version was substantially correct, and that no agreement as pleaded by the defendant was arrived at between them. The learned counsel for the applicant has also urged that the above finding by the Court below was incorrect. We do not consider that the lower Courts in arriving at the finding had failed to exercise their jurisdiction or acted with material irregularity. We see no reason to interfere with that finding.

10. In view of what has been said above the application fails and is accordingly dismissed. Wemake no order as to the cost of this revision.


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