Rajasthan High Court - Jodhpur
Krishan Kumar vs Subhash Chandra on 23 August, 2018
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civ. Leave To Appeal No. 10/2018
1. Krishan Kumar S/o Sh. Mana Ram, Aged About 62 Years,
B/c Jat (Rahad), R/o Ratanpura Tehsil Sangria.
2. Surendra Kumar S/o Sh. Krishan Kumar, Aged About 39
Years, B/c Jat(Rahad), R/o Ratanpura, Tehsil Sangaaria
----Appellants
Versus
1. Subhash Chandra S/o Sh. Banwari Lal, B/c Agarwal, R/o
Sangria Tehsil Sangaria
2. Lrs Of Pradeep Kumar S/o Lt. Sh. Sajjan Kumar, B/c Jat
(Saharan) R/o Baipass Road Chautala Tehsildabwali
District Sirsa (Haryana)
3. Anagad Kumar S/o Lt. Sh. Sajjan Kumar, B/c Jat
(Saharan) R/o Baipass Road Chautala Tehsil Dabwali
District Sirsa (Haryana)
4. Suman D/o Lt. Sh. Sajjan Kumar, B/c Jat(Saharan) R/o
Baipass Road Chautala Tehsil Dabwali District Sirsa
(Haryana)
5. Ajeet Kumar S/o Sh. Leeladhar, By Caste Jat R/o Baipass
Road Chutala Tehsil Dabwali District Sirsa (Haryana)
6. Ashwini Kumar S/o Sh. Ajeet Kumar, B/c Jat (Saharan)
R/o Baipass Road Chautala Tehsil Dabwali Distrcit Sirsa
(Haryana)
7. Savitri Devi W/o Sh. Pradeep Kumar, B/c Jat (Saharan)
R/o Baipass Road Chautala Tehsil Dabwali District
Sirsa(Haryana)
8. Gautam Kumar S/o Pradeep Kumar, B/c Jat (Saharan) R/o
Baipass Road Chautala Tehsil Dabwali District
Sirsa(Haryana)
9. Gaurav Kumar S/o Pradeep Kumar, B/c Jat (Saharan) R/o
Baipass Road Chautala Tehsil Dabwali District
Sirsa(Haryana)
----Respondents
For Appellant(s) : Mr. Vijay Jain
For Respondent(s) :
(2 of 4) [CLA-10/2018]
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 23/08/2018 The present civil leave to appeal has been filed by the appellants-applicants seeking to question the legality and validity of the judgment and decree dated 16.05.2018 passed by Additional District Judge, Sangaria, District Hanumangarh.
The suit was filed by the respondent No. 1 - plaintiff on 30.07.2010 seeking correction in the sale deed dated 05.02.1976 and for permanent injunction, wherein, the appellants-applicants were impleaded as defendant Nos.6 and 7.
When the matter came up before the trial court on 16.05.2018, an application under Order XXIII, Rule 1 CPC was filed by the plaintiff seeking to withdraw the suit against defendant Nos. 6 and 7 (appellant Nos.1 and 2). Another application was filed by defendant Nos.1/1 to 5 seeking to withdraw their counter claim. Both the applications were allowed and thereafter, on the same day a compromise was produced among the plaintiff and defendant Nos. 1/1 to 5 seeking to compromise the suit, which was verified and the suit was decreed in terms of the compromise.
As in the estimation of the appellants-applicants, the decree, which was passed based on the compromise, was against the interests of the appellants-applicants, the appellants-applicants filed S.B. Civil Regular First Appeal No. 291/2018. When the said appeal came up before a Co-ordinate Bench of this Court on 29.05.2018, on the submissions made by the appellants- applicants who made submissions 'in person', the following order was passed:-
"29/05/2018 (3 of 4) [CLA-10/2018] The appellants have filed the present appeal against the judgment and decree dated 16.05.2018 passed by the Additional District and Sessions Judge, Sangaria.
Upon perusal of the record, this Court finds that the plaintiff had withdrawn his suit qua the present appellants being defendants No.6 & 7. The permission to withdraw suit against them had been granted by the learned Court below after hearing their counsel.
As the suit itself had been withdrawn qua defendants No.6 & 7, the present appeal filed by the appellants against the judgment and decree dated 16.05.2018 is not maintainable.
The appeal is therefore dismissed.
Needless to observe that the dismissal of the present appeal shall not mean affirmation of the judgment and decree dated 16.05.2018 and the appellants shall be entitled to take appropriate legal recourse/remedies available to them under the law."
The appellants-applicants filed S.B.Civil Review Petition No. 30/2018, qua order dated 29.05.2018, which was also decided by the co-ordinate Bench by its order dated 02.08.2018 with the following observations:-
"02/08/2018 Instead of pursuing the review application, Mr. Jain, learned counsel for the petitioner, seeks permission to withdraw the review petition, with liberty to take recourse of the appropriate legal remedies.
Permission to withdraw the review petition with aforesaid liberty is granted.
The review petition is dismissed as withdrawn."
Whereafter the present leave to appeal has been filed by the appellants seeking to question the legality and validity of judgment/order and decree dated 16.05.2018 passed by the trial court, whereby, after ordering for withdrawal of the suit against the appellants-applicants, a decree has been passed based on compromise among the rest of the parties, which decree in the estimation of the appellants-applicants is against their interest.
It was vehemently submitted by learned counsel for the appellants-applicants that a perusal of the order dated 29.05.2018 passed by a Co-ordinate Bench of this Court in S.B. Civil First Appeal No. 291/2018 indicates that it was observed by the Court that as the suit has been withdrawn qua defendant Nos. 6 and 7 i.e. the appellants-
(4 of 4) [CLA-10/2018] applicants, the appeal filed by the appellants-applicants against the judgment and decree dated 16.05.2018 was not maintainable.
It was submitted that provisions of Order XLIII, Rule 1A(2) CPC specifically provides for maintainability of an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise on the ground that the compromise should or should not have been recorded and as only the suit was withdrawn against the defendant Nos. 6 and 7 by order dated 16.05.2018 but their names were not deleted from the array of parties, the first appeal as originally filed was in fact maintainable, however, as a view has been taken regarding non-maintainability of the appeal and the review petition against the same has also been rejected, the present leave to appeal be entertained.
As the appeal filed by the appellants against the impugned judgment and decree already stands dismissed by a co-ordinate Bench, the methodology adopted by the applicants now to file appeal by seeking leave to file appeal cannot be countenanced.
For the submissions sought to be made by counsel for the appellants qua order dated 29.05.2018 passed by the co-ordinate Bench, after dismissal of the review petition, though the same may have some substance, the remedy lies somewhere else.
In view thereof, as the appeal filed by the applicants has already been dismissed as not maintainable, this leave to appeal cannot be entertained, the same is, therefore, dismissed.
(ARUN BHANSALI),J A.K. Chouhan/-41 Powered by TCPDF (www.tcpdf.org)