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Gurcharan Singh and ors. Vs. Sukhvinder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 503 of 1969
Judge
Reported inAIR1972P& H19
ActsCode of Civil Procedure (CPC), 1908 - Order 32, Rule 7
AppellantGurcharan Singh and ors.
RespondentSukhvinder Singh and ors.
Appellant Advocate J.N. Kaushal, Sr. Adv. and; M.M. Punchhi, Adv.
Respondent Advocate L.M. Suri and; H.L. Mittal, Advs.
Cases Referred and Ramprasad Ramdin v. Dagdulal Nandlal
Excerpt:
.....filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it is very well for narinder singh in this suit to support the minor. unless it is proved that a fraud was practised on the court, the compromise cannot be set aside because the requirements of law as to when a compromise can be entered into by a minor have been satisfied. it is very well for narinder singh to come in the witness-box and support the minor that he spirited away with..........singh sold 69 kanals 8 marlas of land to jagdish singh and others for rs.5000/-. sukhvinder singh minor son of the vendor filed a suit for pre-emption through his guardian narinder singh, his uncle. during the pendency of the suit on 16th january, 1965, the guardian made an application that they had settled the dispute and the minor will receive a sum of rs.2000/- and give up his claim in the suit. the principal ground stated in the application for compromise was that the minor was not in a position to fork out the pre-emption money. the trial court upon the application of the quardian went into the matter under o. 32, r. 7, code of civil procedure, and came to the conclusion that the compromise was for the benefit of the minor and accordingly granted the sanction. the compromise.....
Judgment:

1. This second appeal is directed against the decision of the learned Additional District Judge, Jullundur, reversing on appeal the decision of the trial Court dismissing the plaintiff's suit.

2. Joginder Singh sold 69 Kanals 8 Marlas of land to Jagdish Singh and others for Rs.5000/-. Sukhvinder Singh minor son of the vendor filed a suit for pre-emption through his guardian Narinder Singh, his uncle. During the pendency of the suit on 16th January, 1965, the guardian made an application that they had settled the dispute and the minor will receive a sum of Rs.2000/- and give up his claim in the suit. The principal ground stated in the application for compromise was that the minor was not in a position to fork out the pre-emption money. The trial Court upon the application of the quardian went into the matter under O. 32, R. 7, Code of Civil Procedure, and came to the conclusion that the compromise was for the benefit of the minor and accordingly granted the sanction. The compromise was then given effect to. A sum of Rs.2000/- was paid by the vendees for payment to the minor.

3. The present suit has been filed by the minor through his mother as guardian nearly two months after the compromise, that is, on 5th March, 1965, for a declaration that the compromise decree was not for his benefit and was illegal. The trial Court came to the conclusion that the compromise decree was binding on the minor because the compromise had been entered into with the leave of the Court and was for his benefit. The appeal against this decision was allowed by the learned Additional District Judge who took the view that it was wrongly stated in the application that the minor was not possessed of sufficient means to pay the pre-emption money and that Narinder Singh had been paid Rs.2000/- to deposit in Court and he has not deposited that amount. In fact, out of this Rs.2000/-, he gave Rs.1000/- to the mother without any receipt. He also withdrew the one-fifth amount deposited in Court and also did not give that amount to her. On these facts, the lower appellate Court reversed the decision of the trial Court and granted the declaration prayed. He also directed the original Court which had dismissed the pre-emption suit to proceed with it. The vendees are dissatisfied with this decision and have come up in second appeal to this Court.

4. The contention of Mr. Jagan Nath Kaushan, learned counsel for the appellants, is that a compromise recorded by the Court after giving leave under Order 32, Rule 7 cannot be called in question. The learned counsel relies on the decision of the Supreme Court in Bishundeo v. Seogeni Rai, AIR 1951 SC 280. It is also significant that Narinder Singh the former guardian-ad-litem was impleaded as a party to the suit but no relief was claimed against him. It is very well for Narinder Singh in this suit to support the minor. But the fact of the matter is that Narinder Singh made an application to the Court that the matter between the minor and the vendee had been settled and the Court should grant him necessary permission to give effect to that settlement. The Court, after considering the application, gave leave to Narinder Singh to compromise the suit on behalf of the minor. The Court also gave a finding that the compromise was for the benefit of the minor. In fact, the vendees paid a sum of Rupees 2000/- in Court in pursuance of that compromise. It appears to me that in this situation the lower appellate Court was wholly in error in disturbing the decision of the trial Court dismissing the plaintiff's suit. No valid reasons have been given by the learned Additional District Judge and he has completely ignored the decision of the Supreme Court already referred to.

5. Mr. Suri, learned counsel for the guardian of the minor, drew my attention to Chandulal Kanhayalal v. Nagindas Bapubhai, AIR 1929 Bom 350, Ishar Singh v. Pritam Singh Jiwan Singh, AIR 1961 Punj 500 and Ramprasad Ramdin v. Dagdulal Nandlal, AIR 1956 Nag 215, for his contention that even if leave is granted by the Court, the compromise can be challenged by a suit and it can be set aside if it is discovered that the minor derived no benefit therefrom. I am unable to agree with this contention. Unless it is proved that a fraud was practised on the Court, the compromise cannot be set aside because the requirements of law as to when a compromise can be entered into by a minor have been satisfied. In any case, in the Bombay decision, the question arose on the application under Order 23, Rule 3, and all that the Bombay High Court has done is to record the various precautions that a Court should take before granting leave under O. 23, R.3, and that case did not deal with a compromise duly recorded under Order 32, Rule 7. In the Punjab case, there was no order of the Court under Order 32, Rule 7 and, therefore, that decision is of no assistance so far as the present case is concerned. In the Nagpur case, the compromise was declared void on the short ground that in the compromise the guardian had secured a benefit for himself. This has not happened in the present case. The compromise did not give any benefit to the guardian and, therefore, this decision has no application to this case.

6. I have already mentioned that though the previous guardian Narinder Singh was made a party to the suit, no relief was claimed against him. If as is now alleged that he had spirited away with the minor's funds a definite relief would have been claimed against him. It is very well for Narinder Singh to come in the witness-box and support the minor that he spirited away with the minor's fund, but it is equally surprising that the mother, according to whom the money was paid to Narinder Singh and was spirited away by him, has not sought any relief against Narinder Singh. Narinder Singh is closely related to the minor. It appears to me that all this trouble in pursuing this litigation has been taken merely to fleece the vendees.

7. For the reasons recorded above, I allow this appeal, set aside the judgment and decree of the lower appellate Court and restore that of the trial Court. However, there will be no order as to costs against the minor and her mother, but Narinder Singh will pay the costs of the vendees in all the Courts.

8. Appeal allowed.


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