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Hari Ram and ors. Vs. Nafe Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in(1998)118PLR852
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96(3) - Order 23, Rule 3 - Order 43, Rule 1A(2)
AppellantHari Ram and ors.
RespondentNafe Singh and ors.
Appellant Advocate Narottam Kaushal, Adv.
Respondent Advocate Vikram Singh, Adv.
DispositionAppeal dismissed
Cases ReferredBhoop Singh v. Ram Singh
Excerpt:
.....favour. as a consequence of the statement of the defendants as well as of the plaintiff instant suit is decreed in favour of plaintiff and against the defendants in terms of the compromise ex. learned 1st appellate court vide detailed and well reasoned judgment dated 3.10.1997 dismissed the appeal with costs. once the compromise is lawful and requirements stipulated under order 23 rule 3 cpc are satisfied, then it would be difficult to hold that appeal before the 1st appellate court was filed bonafide and ex. 523 held as under :consistent views taken by various courts by now have clearly spelled the conditions which normally must be satisfied for vavidly invoking the provisions of order 23 rule 3 of the code and for passing of such a decree, which are as under: the only argument..........in para no. 2 of the written statement? opd.9. relief.4. as noticed during the pendency of the suit compromise decree ex.c-1 was passed. all grounds of attack of this decree were rejected by the learned 1st appellate court for valid and proper reasons stated in the impugned judgment. learned counsel for the appellants has not been able to show what provisions of order 23 rule 3 of the code of civil procedure have not been complied with for the purpose of recording and passing compromise decree ex.c.1. it is not disputed that written application was filed, statements of the parties were recorded and court after due application of mind had passed the compromise decree. the interests of the minors were duly considered and the application for recording of such compromise was filed by the.....
Judgment:

Swatanter Kumar, J.

1. Nafe Singh had filed the suit for possession by way of specific performance of the agreement to sell dated 6.9.1991 against Kishna and Ors. on 14.8.1992. During the pendency of the suit, the parties entered into settlement. This settlement which was reduced into writing, was signed/thumb marked by the parties. On 16.2.1997 the parties filed an application to record the compromise as well as separate applications were filed by Lachhman who was father of minor defendants No. 4 to 6 stating that compromise was in the benefit and interest of the minors and consequently, compromise may be recorded and decree in terms thereof be passed. Learned trial Court vide judgment and decree dated 20.2.1997 recorded the compromise between the parties and passed the decree thereupon. Relevant part of the judgment reads as under :-

'In view of the statement, affidavit of Lachhman father of defendants No. 4 to 6, and certificate of their counsel coupled with the fact that interest of the father is not adverse to the interest of the' minors, father of the minors is allowed to compromise on their behalf.

Joint statement of defendant No. 1 Kishna, Lachhman father of defendants No. 4 to 6. Nasib Singh defendant No. 2 and Shiv Ram, defendant No. 3 has been recorded. They admitted the compromise deed Ex. C-1 as correct and stated that suit of the plaintiff be decreed in terms of the same. They also stated that as per compromise they shall execute registered sale-deed in favour of the plaintiff on or before 11.3.1996 and shall receive an amount of Rs. 4,97,400/- before Sub-Registrar. In case, they fail to do so, the plaintiff shall be at liberty to deposit the said amount in the Court upto 16.3.1997 and get registered sale-deed executed in his favour. It is also stated by them that in case sale consideration amount is not paid to them by the plaintiff before the Sub-Registrar, his suit shall be deemed to have been dismissed. Cost of litigation is stated to have been borne by both the parties in equal shares.

In his statement, the plaintiff also accepted and admitted compromise deed Ex.C-1 and stated that the suit be decreed in terms of the same.

As a consequence of the statement of the defendants as well as of the plaintiff instant suit is decreed in favour of plaintiff and against the defendants in terms of the compromise Ex.C-1. The conditions mentioned therein shall be binding on both the parties. Compromise deed Ex.C-1 is made part of the decree. Accordingly, decree sheet be prepared and the file be consigned to the record room.'

Against this judgment and decree, the minors through their uncle Dalel Singh filed an appeal before the learned District Judge, Karnal, being Appeal No. 52/9 of 1997 on 10.3.1997 wherein the other defendants including the plaintiff were shown as respondents. Learned 1st Appellate Court vide detailed and well reasoned judgment dated 3.10.1997 dismissed the appeal with costs. It is this judgment and decree of the learned 1st Appellate Court which has been assailed before this Court in the Regular Second Appeal.

2. The suit for possession by way of specific performance of the agreement dated 6.9.1991 was filed by Nafe Singh on the averments that Kishna defendant No. 1 is the recorded owner of agricultural land situated in Village Dabkoli Kalan, Tehsil and District Karnal as described in the Plaint. The said defendant entered into an agreement to sell dated 6.9.1991. In terms of the agreement, he has received a sum of Rs. 2,46,600/- as earnest money out of the sale consideration of Rs. 7,44,000/- and sale-deed was to be executed on 15.6.1992. As defendant No. 1 had share in the land, he had agreed to sell the suit land partitioned from other defendants to the extent of his share which he had agreed to sell and in default the plaintiff had right to get the sale-deed registered through process of Court. As the plaintiff was always ready and willing to perform his part of the agreement and (defendant No. 1 defaulted, he filed the present suit after serving notice upon the defendant.

3. Lachhman was appointed as guardian of minor defendants No. 2 to 6 as he was their father and he had no interest adverse to the minors. It may be noticed here that defendants No. 2 to 6 were not impleaded by the plaintiff originally but were impleaded as parties vide order of the Court dated 1.2.1995 as they were subsequent transferee of the land in question. The allegation was that after institution of the present suit, defendant No. 1 had suffered a collusive decree in favour of other defendants in suit No. 908 of 1993 titled as Nasib Singh and Ors. v. Kishna, which was decreed on 3.2.1993. This decree was pleaded to be null and void and ineffective as regards the interest of the plaintiff in the present suit. These averments of the plaintiff were contested by the defendants who filed written statement It was stated that they never entered into agreement to sell and the alleged agreement is the result of fraud practiced by the plaintiff upon the defendants. Kishna defendant No. 1 was stated to be 73 years old person and he was bachelor and the children of two brothers were his legal heirs. It was averred that he was taken to the house of the plaintiff where he was served liquor and there upon thumb impressions were obtained on certain papers. Even in the written statement it was not disputed that share of defendant No. 1 was 2/3rd in the property which was admittedly larger area than the area agreed to be sold vide agreement dated 6.9.1991. The defendants thus prayed for dismissal of the suit. In the replication averments of the plaint were reiterated but it was also stated that in furtherance to the agreement to sell, defendant No. 1 had filed an application for partition on 9.9.1991 through Shri R.K. Mehndi, Advocate and the application for partition and Vakalatnama were thumb marked by the said defendant. Learned trial Court, in view of above pleadings of the parties, had framed the following issues :-

1. Whether the defendant agreed to sale agricultural land, the details of which are given in para No. 1 of the plaint, vide written agreement dated 6.9.1991? OPP.

2. Whether the plaintiff has paid a sum of Rs. 2,46,600/- to the defendant at the time of execution of agreement dated 6.9.1991 as earnest money? OPP.

3. Whether the defendant has committed the breach of contract? OPP.

4. Whether the plaintiff has been and is ready and willing to perform his part of contract? OPP.

5. Whether the suit is not maintainable? OPD

6. Whether the plaintiff has no cause of action? OPD.

7. Whether the impugned agreement dated 6.9.1991 is the result of fraud or misrepresentation? OPD.

8. Whether the plaintiff has procured the impugned agreement in his favour after administering liquor to the defendant as alleged in para No. 2 of the written statement? OPD.

9. Relief.

4. As noticed during the pendency of the suit compromise decree Ex.C-1 was passed. All grounds of attack of this decree were rejected by the learned 1st Appellate Court for valid and proper reasons stated in the impugned judgment. Learned counsel for the appellants has not been able to show what provisions of Order 23 Rule 3 of the Code of Civil Procedure have not been complied with for the purpose of recording and passing compromise decree Ex.C.1. It is not disputed that written application was filed, statements of the parties were recorded and Court after due application of mind had passed the compromise decree. The interests of the minors were duly considered and the application for recording of such compromise was filed by the person not less than their father who averred on affidavit that he has no interest adverse to the minors and compromise was in the interest to the minors and compromise may be recorded. It was for the appellants to plead and prove before the Court as to what fraud or mis-representation was practised upon them while entering into the compromise Ex.C-1. Further more, the alleged compromise was unlawful on any ground and for reason. As is clear from the records which are admittedly copies of documents placed on record by the learned counsel for the parties, nothing has been brought on record to show that any factors which render Ex.C-1 invalid or unlawful, were pleaded in the memorandum of appeal. Once the compromise is lawful and requirements stipulated under Order 23 Rule 3 CPC are satisfied, then it would be difficult to hold that appeal before the 1st Appellate Court was filed bonafide and Ex.C-1 was liable to be set aside. Learned 1st Appellate Court has rightly noticed that without removal of guardian who had been appointed in the suit and who was also their natural and lawful guardian, the uncle could not have preferred an appeal without seeking permission of the Appellate Court. Relying upon the judgments of the Supreme Court in the case of Gurpreet Singh v. Chatur Bhuj Goel, (1988-2)94 P.L.R. 365 and Banwari Lal v. Smt. Chando Devi, AIR 1993 SC 1139, this Court in the case of Chand Kaur v. Raj Kaur and Ors., (1996-3)114 P.L.R. 523 held as under :-

'Consistent views taken by various Courts by now have clearly spelled the conditions which normally must be satisfied for vavidly invoking the provisions of Order 23 Rule 3 of the Code and for passing of such a decree, which are as under:-

(i) There should be a lawful agreement or compromise;

(ii) This compromise has to be in writing and signed by the parties;

(iii) The compromise must be recorded by the court.

(iv) A decree on such compromise can be passed so far it relates to the parties to the suit but may extend to a special matter which is not the subject matter of the suit.

The Court has to record its satisfaction with regard to adjustment of the whole or part of the claim in terms of such lawful compromise.'

5. The cumulative effect of the above enunciated principles of law is that lawful compromise which is in writing, signed by the parties and statements of the parties had been recorded would have to be binding and the parties cannot be permitted to escape from the consequences of such compromise. The only argument advanced before the learned 1st Appellate Curt as well as this Court is that the agreement becomes invalid because interest of the minors was not protected. Firstly, there is no evidence on record as no application was filed even by the appellants to lead evidence before the 1st Appellate Court. The mere allegation in the memorandum of appeal would only show that the defendants (alleged minors) if at all had any interest in the property, was as heirs of defendant No. 1 as he was bachelor and issueless. Defendant No. 1 is alive. Thus the question of his heirs at this juncture would be hardly of any consequences. The trial Court had fully ensured the compliance to the provisions of Order 23 Rule 7 of the Code of Civil Procedure by recording the statement of the minors. The lawful guardian i.e. father of the minors had taken full care of his children at the relevant time. Admittedly their 1/3rd share in the property in question was neither sold nor was being effected in any manner whatsoever under the agreement to sell dated 6.9.1991. It is also conceded that no steps were taken before the learned trial Court to show if any fraud had been played upon the guardian of the minors or other defendants in any manner whatsoever. The collusive decree passed in December, 1993 cannot frustrate the rights of the plaintiff in the present suit because the agreement to sell limited to the share of Kishna was dated 6.9.1991. The suit was instituted in August, 1992 while collusive decree without contest was suffered by Kishna in favour of other defendants in December, 1993. This conduct of these parties does not in any way indicate or cause to show that Ex.C-1 is the result of any fraud or the agreement is unlawful. The appellate Court had rightly noticed that the provisions of Section 52 of the Transfer of Property Act would come to the aid of the plaintiff rather than the defendants. Even if the said decree is taken to be ineffective, in that event nothing prevented Lachhman to give up his right in favour of the plaintiff in the suit in furtherance to the agreement dated 6.9.1991. The plaintiff in the present suit was admittedly not party to the other suit and if any rights have accrued, they could be lawfully waived off or given up by the plaintiff in the other suit in favour of the plaintiff in the present suit which was done vide Ex.C-1. Firstly, the previous decree would have to be subject to the provisions of Section 52 of the Transfer of Property Act, but in any case it must give up in favour of the plaintiff to protect his rights accruing from Ex.C-1. The alleged collusive decree to my mind would be ineffective as it is a decree which is stated to have created rights of the parties in immovable property for the first time. The decree was neither registered nor did it satisfy the other requirements of law. Such a decree would be incapable of passing any right to the plaintiffs in that suit as held by Hon'ble Apex Court in the case of Bhoop Singh v. Ram Singh, (1996-1)112 P.L.R. 559 (S.C.).

6. In view of above discussion, I have no hesitation in coming to the conclusion that Ex.C-1 was neither result of any fraud or mis-representation nor was an agreement which cannot be termed as lawful. Further more, the provisions of Order 23 Rule 3 CPC were duly complied with in meticulous manner by the learned trial Court which ultimately applied its mind and recorded Ex.C-1. Pervasive percept regulating the recording of compromise, satisfaction of the Court in that regard and extent of finality emerges with absolute clarity from the various provisions of the Code of Civil Procedure. Under the provisions of Rule 3 of Order 23 of the Code of Civil Procedure, compromise must be recorded in writing and should be signed by the parties. This agreement of compromise has to be lawful. Statements of the parties have to be recorded. Upon recording its satisfaction and recording of the statements of the parties, Court would pass a decree in terms of the compromise. Once the decree is passed, it attained finality inter se the parties. Such a decree cannot be challenged by filing a separate suit praying for setting aside the decree on the ground that the compromise on the basis of which decree was passed, was not lawful. The provisions of Section 96(3) of the Code prohibits an appeal against compromise decree, in other words, no appeal is permitted from the decree passed by the Court with the consent of the parties. Still, two remedies are open to a party who is aggrieved by such compromise decree; one is that under the proviso of Rule 3 of Order 23 could state that there has been no adjustment or satisfaction as stated in the compromise and the Court concerned would decide the question in regard thereto. The other remedy available to the party is under the provisions Order 43 where a party has been afforded right to contest the decree in an appeal that compromise should or should not have been recorded. The scope and ambit of Sub-rule 2 of Rule 1A of Order 43 is apparently limited one. The provisions must be construed keeping in mind the language of Section 96(3) and Order 43 Rule 1A(2) and the legislative intent behind these provisions. Limited right available to a party under the provisions of Order 43 (1A)(2) of the Code cannot be permitted to be abused to the extent that it renders other effective provisions totally ineffective and inconsequential. A reference to the following observations of Hon'ble Supreme Court in the case of Banwari Lal (supra) can be appropriately made at this stage :-

'After the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1-A(2) or Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute. As such a party challenging a compromise can file a petition under the proviso to Rule 3 of Order 23 or an appeal Under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1-A of Order 43 of the Code.'

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When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties.

Applying the aforesaid principles to the present case, it cannot be said that either the compromise was unlawful or was the result of any fraud or mis-representation. The compromise was lawful which has been concurrently found by the learned courts below and there could be no doubt that the provisions of Order 23 Rule 3 CPC have been complied with in their spirit and substance. In the face of these facts, even the present appeal would not be maintainable because the agreement was entered into between the parties by their free consent. This is further substantiated and has to be seen in the background that even the appeal was neither preferred by natural and guardian litim nor leave of the Court was sought for that purpose. It does not even stand to common sense that uncle of the minors could see the benefit of the minors better than the father of the minors. No such circumstances or facts have been stated even in the present memorandum of appeal which could effect judicial conscious of the Court to hold that Ex.C-1 was liable to be set aside. Except the bald allegations in ground No. 3 that the agreement dated 6.9.1991 was entered into by fraud and mis-representation no detailed facts or circumstances, constituting such fraud or mis-representation have been stated. They were also not stated before the learned 1st Appellate Court.

8. For the reasons aforestated, the present appeal lacks any merit and deserves to be dismissed. The same is hereby dismissed affirming the judgments of the courts below. There shall be no order as to costs.


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