Gauhati High Court
Smti. Amela Begum Mazumdar & 3 Ors vs Md. Abid Hussain Mazumdar & 8 Ors on 11 September, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
CRP No. 117 of 2014
1) Smti. Amela Begum Mazumdar,
Wife of Late Motiur Rahman Mazumdar.
2) Mahmud Hussain Mazumdar,
Son of Late Motiur Rahman Mazumdar.
3) Smti. Eniz Begum Mazumdar,
Daughter of Late Motiur Rahman Mazumdar.
4) Smti. Sahanaz Begum Mazumdar,
Daughter of Late Motiur Rahman Mazumdar.
All are residents of Hailakandi Road, Ph. Barakpar,
Ambikapur, Part-X, P.O.- Rangerkhari, P.S.-Silchar,
District - Cachar (Assam), Silchar - 5.
..... Petitioners
-Versus-
1) Md. Abid Hussain Mazumdar,
Son of Late Khayeruddin Mazumdar.
2) Md. Altab Hussain Mazumdar,
Son of Late Khayeruddin Mazumdar.
3) Md. Gulanur Hussain Mazumdar,
Son of Late Khayeruddin Mazumdar.
4) Md. Wahhid Hussain Mazumdar,
Son of Late Khayeruddin Mazumdar.,
5) Hamida Begum Mazumdar,
Wife of Late Khayeruddin Mazumdar.,
All residents of Hailakandi Road (Kathal Point),
Silchar Town, P.O.- Rongerkhari, Silchar -5,
Ph. Barakpur, District-Cachar (Assam).
6) Jashimuddin Mazumdar,
Son of Late Mubaser Ali Mazumdar.
7) Jahiruddin Mazumdar,
Son of Late Mubaser Ali Mazumdar.
CRP No.117 of 2014 Page 1 of 7
8) Ziauddin Mazumdar,
Son of Late Mubaser Ali Mazumdar.
9) Jahura Begum Mazumdar,
Daughter of Late Mubaser Ali Mazumdar.
All residents of Hailakandi Road (Kathal Point),
Silchar Town, P.O.- Rongerkhari, Silchar -5,
Ph. Barakpur, District-Cachar (Assam).
........Respondents
BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the Petitioners : Mr. G.C. Phukan, Advocate.
For the Respondents : Mr. B. Banerjee, SC,
Mr. J. Laskar, Advocate.
Date of hearing & judgment : 11.09.2014
JUDGMENT AND ORDER (Oral)
Heard Mr. G.C. Phukan, learned counsel for the petitioners as well as Mr. B. Banerjee, learned Senior Counsel assisted by Mr. J. Laskar, learned counsel for the opposite parties.
[2] In this application under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure, the petitioners have challenged the order dated 08.01.2014 passed by the learned Civil Judge No.2, Cachar at Silchar in Title Suit No. 16 of 2012 of this Court decreeing the suit on compromise as against the defendants No.1 to 4 of the suit.
[3] As many as 5 plaintiffs who are impleaded as opposite parties No.1 to 5 in this revision petition, instituted Title Suit No. 16 of 2012 against a host of 43 defendants praying, inter alia, for passing preliminary decree declaring plaintiffs' right, title and interest in the Schedule-2 land within Schedule-1, entire suit patta and for a final decree of partition as well as recovery of possession of Schedule-B land. The defendants No. 39 CRP No.117 of 2014 Page 2 of 7 to 42 filed one joint written statement contesting the suit of the plaintiffs and they also stated their own facts in Paragraphs-14 to 22 of the written statement. The defendants No.1 to 4 filed separate written statement contesting the suit and prayed that the suit may be dismissed with cost. Thereafter, these defendants No. 1 to 4 filed application on 19.12.2013 under Order XXIII Rule 3 of the Code of Civil Procedure praying that suit be decreed against the defendants No. 1 to 4 without cost making the said compromise petition to be a part of the decree against them. In the body of the application it was stated that plaintiffs persuaded the contesting defendants No.1 to 4 to remove constructed house from the Schedule-3 land within Schedule-2 land of the plaint immediately on/ or before filing of the compromise petition and thereafter, to co-operate with the plaintiffs for passing final decree in due course. As defendants No.1 to 4 by filing a duly verified application made prayer before the learned Court that the suit be decreed against them. The learned trial court by impugned order dated 08.01.2014 decreed the suit as against the defendants No.1 to 4 on admission and passed order for proceeding against other side of defendants. 07.02.2004 was fixed for evidence of P.W.8 by the impugned order dated 08.01.2014. The defendants No. 1 to 4 appeared to be satisfied with the compromise decree and they have not challenged the same either before this Court or before the trial court in any way. The contesting defendants No.39 of 42 has filed the present application challenging compromise between plaintiffs and defendants No.1 to 4 and prayed that impugned order decreeing the suit on compromise as against the defendants No.1 to 4 be set aside.
[4] Although this application has been filed under Article 227 of the Constitution of India yet as required under Rule 1(V) of Chapter 5-B of the Guahati High Court rules, no ground has been set out in the application. The petitioners did not dispute that there was a compromise between the plaintiffs and the defendants No.1 to 4. The only objection that is discernible on perusal of this revision petition is that the compromise petition did not contain any date but it was instantly allowed on 08.01.2014. The learned court considered the application and passed admission decree against the defendants No.1 to 4. But no opportunity of hearing was given to the present petitioners before passing the impugned order. According to the petitioners such order can never be permissible CRP No.117 of 2014 Page 3 of 7 and compromise should not be detrimental to the interest of the other party of the proceeding. However, as against the specific question asked by this Court, the learned counsel appearing for the petitioners has not claimed that compromise has been fraudulently entered into to cause detriment to the present petitioners. In Paragraph 13 of this petition, it is claimed that the learned Court was not entitled to proceed with the suit without 'converting (sic)' the present petitioners as they are the contesting defendants. The other objection is that proforma defendants No.43 is minor.
[5] Mr. Banerjee, learned Senior Counsel for the opposite parties, on the other hand, submits that even if the compromise decree is to be called in question either on correctness or otherwise the compromise and/ or voidability or illegality of the compromise between two sets of the parties, the objection ought to have been raised before the same Court so, that the Court could have arrived at a decision in this regard. The learned counsel has pressed into service a judgment of the Hon'ble Supreme Court in the Case of Horil vs. Keshav and Another reported in (2012) 5 SCC 525. Placing reliance on Paragraph-9 of this application learned Senior Counsel would argue that a compromise forming basis of a decree can only be questioned before the same Court. Paragraphs 7, 10, 11 & 12 of the said judgment are quoted below:
"7. When the matter came before the Munsiff on remand, the defendants once again objected to the maintainability of the suit, this time raising the contention that it was barred under the provisions of Order LIV Rule 3-A of dismissed the objection and found and held that the suit was maintainable. The respondent-defendants took the matter in revision (Civil Revision No. Nil of 1988) which was dismissed by the District Judge, Banda, by this order dated 17.02.1988.
10. In Banwari Lal vs. Chando Devi this Court examined the provisions of Order LIV Rule 3-A in some detail and in the light of the amendments introduced in the Code and in Para-7 of the judgment came to hold as follows: (SCC p.585).
"7. By adding the proviso along with an Explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the Court which had recorded the CRP No.117 of 2014 Page 4 of 7 compromise in question. That Court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The Explanation made it clear that an agreement or a compromise which is void of voidable under the Contract Act shall not be deemed to be lawful within the meaning of the said rule. Having introduced the proviso along with the Explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3-A in respect of institution of separate suit for setting aside a decree on the basis of a compromise saying:
'3A Bar to suit- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.'"
11. It was further held in Banwari Lal in Paras 13 & 14 as follows: (SCC pp 588-89) "13. When the amending Act introduced a proviso along with an Explanation to Rule 3 of Order LIV saying 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', the court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the Explanation to the proviso says that an agreement or compromise 'which is void or voidable under the Contract Act...' shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the Explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under 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.
14......The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the CRP No.117 of 2014 Page 5 of 7 meaning of the Explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27.02.1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order."
12. In the light of the decision in Banwari Lal it would prima facie appears that the High Court was right in holding that the appellant's suit was hit by the provisions of Order 23 Rule 3-A and was not maintainable. But the significant distinguishing feature in this case is that the compromise decree which is alleged to be fraudulent and which is sought to be declared as nullity was passed not by a civil Court but by a Revenue Court in a suit under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter "the Act")."
[6] The submission of the petitioners in this revision petition is that plaintiffs filed a suit for partition against all these co-sharers who are 43 in number. Out of them defendants No.1 to 4 entered into compromise and a decree has been passed against these defendants. The learned trial court has not closed the proceeding in so far as other defendants are concerned. A bare perusal of order dated 08.01.2014 itself shows that the suit would proceed against the other defendants. Admittedly present petitioners as defendants filed written statement not only denying the case of the plaintiffs but also placing a set of their own facts as required under Order VIII Rule 2 of the Code of Civil Procedure. The plaintiffs are yet to lead their evidence as it appears from the impugned order. After the plaintiffs adduce their evidence and witnesses are cross-examined by the defendants, the contesting defendants No.5 to 43 who have filed a written statement shall be at liberty to lead their own evidence to prove their respective cases. Since, it is a suit for partition, the learned Court would have to decide not only share of the plaintiffs but also quantum of share of all the parties under Order XX Rule 18 of the Code of Civil Procedure. That being the case, the application filed by the present petitioners at this stage appears to be unnecessary. The present petitioners have no locus standi to challenge the impugned order without praying specifically that the compromise as recorded had either never taken place or it had fraudulently taken place. No such stand appears to have been taken by the CRP No.117 of 2014 Page 6 of 7 present petitioners either before the learned trial court or even by making any specific allegation to the above fact in this revision petition.
[7] Considering the totality of the circumstances, I do not feel that the petitioners have succeeded to make out any prima facie case for interference with the impugned order in exercise of Supervisory or Revisional Jurisdiction of this Court. This revision petition, accordingly, stands closed.
[8] Rejection of this application, however, shall not be construed to debar the contesting defendants from take their lawful stand in course of trial to which they are otherwise entitled in law.
[9] No order as to cost.
[10] It is needless to say that interim order passed earlier stands automatically vacated.
JUDGE sumita CRP No.117 of 2014 Page 7 of 7