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Narayan Swarup and ors. Vs. Shankar Lal and Sons. (Private) Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 554 of 1966
Judge
Reported inAIR1969Raj302
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 7 - Order 39, Rules 1 and 2
AppellantNarayan Swarup and ors.
RespondentShankar Lal and Sons. (Private) Ltd. and ors.
Appellant Advocate C.L. Agarwal and; R.S. Kejriwal, Advs.
Respondent Advocate D.P. Gupta,; H.C. Rastogi and; Mohanlal, Advs.
DispositionRevision dismissed
Cases ReferredChhabba Lal v. Kallu Lal
Excerpt:
.....the plaintiffs' application for issue of temporary injunction was dismissed and the ex parte injunction passed on 2-11-1965 was vacated. the plaintiffs filed an appeal before the learned district judge, aimer, but without success and, therefore, they have come in revision to this court. 1 has, in this connection, placed strong reliance on, hari shankar v. narayan jairam, air 1953 nag 286. it is well settled by a series of decisions of the supreme court that under section 115 of the code of civil procedure the high court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. babulal,..........on 8-2-1960 against bishan swarup, father of the present petitioners. this suit was registered as civil suit no. 180 of 1960. bishan swarup died during the pendency of the suit and the petitioners as well as non-petitioners no. 2 to 5, who are the widow, sons and daughters of bishan swarup, were impleaded in his place as his legal representatives. non-petitioner no. 2, who is the widow of bishan swarup, was made guardian of the minor sons and daughters of bishan swarup. on 21-3-1961 a compromise petition signed by shri s. s. deedwania, counsel for non-petitioner no. 1 m/s. shankar lal and sons plaintiffs, and shri j. n. mehra, counsel for the defendants, in that suit, was filed and according to the compromise, possession of a part of the premises in dispute had been handed over to the.....
Judgment:
ORDER

C.M. Lodha, J.

1. The petitioners before me are the plaintiffs. Their application for issuing temporary injunction was dismissed by the trial Court and so also the appeal filed before the District Judge.

2. Non-petitioner No. 1 M/s. Shankar Lal and Sons (Private) Ltd. filed a suit for arrears of rent and ejectment on 8-2-1960 against Bishan Swarup, father of the present petitioners. This suit was registered as Civil Suit No. 180 of 1960. Bishan Swarup died during the pendency of the suit and the petitioners as well as non-petitioners No. 2 to 5, who are the widow, sons and daughters of Bishan Swarup, were impleaded in his place as his legal representatives. Non-petitioner No. 2, who is the widow of Bishan Swarup, was made guardian of the minor sons and daughters of Bishan Swarup. On 21-3-1961 a compromise petition signed by Shri S. S. Deedwania, counsel for non-petitioner No. 1 M/s. Shankar Lal and Sons plaintiffs, and Shri J. N. Mehra, counsel for the defendants, in that suit, was filed and according to the compromise, possession of a part of the premises in dispute had been handed over to the plaintiff on 15-3-1961 and it was agreed with respect to the rest of the property that the defendants would deliver the possession of the same to the plaintiffs by 15-11-1964. The Court passed the decree in terms of the compromise. It may, however, be stated that no permission to enter into the compromise on behalf of minors as contemplated by Order 32, Rule 7, Civil P. C, was expressly given by the Court.

3. The non-petitioner No. 1 took out execution of the decree on 28-11-1964, but the judgment-debtors who are the plaintiffs in the present suit resisted the execution of the decree on the ground that since it had been passed in disregard of the provisions of Order 32, Rule 7, Civil P. C. it was a nullity and could not be executed. The executing Court, however, repelled the judgment-debtors' contention and allowed the execution to proceed. Consequently the petitioners filed the present suit in the Court of the Munsif City (West), Ajmer, on 2-11-1965 for setting aside the decree dated 21-3-1961 and also for issuance of permanent injunction against the non-petitioner No. 1 from executing the said decree. They also moved an application under Order 39, Rules 1 and 2 Civil P. C, for issue of a temporary injunction against the non-petitioner No. 1 restraining him from executing the impugned decree passed in Civil Suit No. 180 of 1960. An ex parte injunction was issued by the trial Court on 2-11-1965, but after hearing both the parties, the application for temporary injunction was dismissed on 19-3-1966. The learned Munsif held that the plaintiffs have failed to show a prima facie case in their favour and in this view of the matter the plaintiffs' application for issue of temporary injunction was dismissed and the ex parte injunction passed on 2-11-1965 was vacated. The plaintiffs filed an appeal before the learned District Judge, Aimer, but without success and, therefore, they have come in revision to this Court.

4. A preliminary objection has been raised on behalf of the non-petitioner No. 1 that no revision is maintainable inasmuch as there is no question of jurisdiction involved in the case. The learned counsel for the non-petitioner No. 1 has, in this connection, placed strong reliance on, Hari Shankar v. Rao Girdhari Lal, Chowdhury, AIR 1963 SC 698; Abbasbhai Alimahomed v. Gulambhai Safibhai, AIR 1964 SC 1341; Shri Ram Maroti v. Narayan Jairam, AIR 1953 Nag 286.

It is well settled by a series of decisions of the Supreme Court that under Section 115 of the Code of Civil Procedure the High Court's powers are limited to see whether in a case decided, there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. The right there is confined to jurisdiction and jurisdiction alone. All that has to be seen in the present case, therefore, is whether any question of jurisdiction is involved. On the basis of a Bench decision of this Court Narpat Lal v. Babulal, 1964 Raj LW 457 = (AIR 1964 Raj 92) the learned Munsif as well as the learned District Judge held that a minor in order to avoid a decree on the ground of non-compliance of Order 32, Rule 7, Civil P. C. must show that the compromise is vitiated because of some valid reasons such as fraud or collusion or that the compromise is prejudicial to the interests of the minor. They further held that in the present case the plaintiffs had not made any allegation in the plaint how the comprmise entered on their behalf in the previous suit was vitiated by fraud or collusion, or that it was in any other way prejudicial to their interest. I have looked in the plaint. All that has been stated in the plaint is that the decree is not enforceable and is a nullity and not binding on the plaintiffs as it was passed without complying with the provisions of Order 32, Rule 7, Civil P. C. Thus it is clear that no question of jurisdiction is involved in the case.

The learned Counsel for the petitioners contended that the view taken by this Court in 1964 Raj LW 457 = (AIR 1964 Raj 92) is not correct and that the correct position in law is that the compromise decree passed against the minor plaintiffs without complying with the provisions of Order 32, Rule 7, Civil P. C. is altogether a nullity and in this connection he has placed reliance on Chhabba Lal v. Kallu Lal, AIR 1946 PC 72. It would not be proper for me at this stage to give a decision on the question whether the decree passed in the previous suit is a nullity, because this is a question which would be decided at the time of the disposal of the suit finally. But so far as this revision is concerned it cannot be said that there is a question of jurisdiction involved in this case. Both the lower Courts had jurisdiction to decide whether the petitioners had a prima facie case or not. It is neither a case of assumption of jurisdiction nor a case of refusal to exercise jurisdiction nor one of illegal or Irregular exercise of that jurisdiction. There is force in the preliminary objection and it must prevail.

5. The revision application is, therefore, dismissed, but there will be no order as to costs.


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