Madhya Pradesh High Court
Babulal And Anr. vs Smt. Chaturiya And Ors. on 28 February, 2000
Equivalent citations: 2000(4)MPHT416, 2001 A I H C 1537, (2001) 2 CIVILCOURTC 62, (2000) 3 MPLJ 204, (2001) 1 CURCC 23, (2001) 3 LANDLR 43, (2000) 4 CIVLJ 681
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. Plaintiffs-respondents 1 to 3 herein filed Civil Suit No. 52-A of 1980 impleading defendants/petitioners herein for declaration of their title and confirmation of possession over the land, details whereof have been given in the plaint. Said suit was decreed by the trial Court purportedly on the basis of compromise entered between the plaintiffs and the defendants.
2. After passing of the compromise decree plaintiff No. 1 filed application under Section 151 of the Code of Civil Procedure and prayed for setting aside the compromise decree on the allegation that the same is unlawful. By the impugned order dated 17-10-1989 the trial Court held that the application filed by plaintiff No. 1 to set aside the compromise decree under Section 151 of the Civil Procedure Code is maintainable, and fixed the case for recording of evidence. Defendants aggrieved by the same preferred revision and the revisional Court by order dated 11-2-1991 dismissed the revision application.
3. Mr. R.S. Tiwari appears on behalf of the petitioners whereas respondents are represented by Shri A.P. Singh. Mr. Tiwari appearing on behalf of the petitioner submits that in view of the provisions of Order 23 Rule 3-A of the Code of Civil Procedure no fresh suit lies and the only remedy in the circumstances which was available to plaintiff No. 1 was to file appeal under Order 43, Rule 1-A of the Code of Civil Procedure. In support of his submission he has placed reliance on a Division Bench Judgment of this Court in the case of Thakur Prasad v. Bhagwandas, AIR 1985 MP 171. He has drawn my attention to the following passage from Paragraph 10 of the judgment which reads as follows :--
"10. I, therefore, opine that an appeal lies under Section 96 read with Order 43, Rule 1-A of the Code of Civil Procedure against recording of a compromise by the trial Court, provided the compromise is not lawful."
Reliance of Mr. Tiwari on the aforesaid authority is absolutely misplaced. In my opinion in the present case question which falls for consideration is not that an appeal lies under Section 96 read with Order 43, Rule 1-A of the Civil Procedure Code against unlawful compromise decree, but the question is as to whether Court can entertain an application under Section 151 of the Code of Civil Procedure questioning the legality and validity of the compromise.
3A. This question came up for consideration before Calcutta High Court in the case Sri Sri Iswar Gopal Jew and Ors. v. Bhagwandas Shaw, AIR 1982 Calcutta 12, where-in the Calcutta High Court held that application under Section 151 of the Code of Civil Procedure is the proper remedy. Paragraph 4 of the judgment is relevant for the purpose which reads as follows :--
"According to the petitioner's counsel, the present consent decree was not in writing or signed by the parties as required under Order 23, Rule 3 of the C.P.C. Hence it was against the express provisions of law and was unlawful. The consent decree was passed due to the mistake or misapprehension of the Advocate on record of the petitioner. This allegation will bring the case within the scope of the explanation to Rule 3 and would be deemed to be unlawful. If so, a suit for setting aside a consent decree would be barred under the provision of Rule 3-A. I accept this submission on behalf of the petitioner that on the basis of the facts alleged in the petition no suit could be filed for the relief claimed in the petition. An application under Section 151 of the C.P.C. or a review is the proper procedure."
(Underlining mine) This question pointedly came up for consideration before the Karnataka High Court in the case of Smt. Tara Bai v. V.S. Krishnaswamy Rao, AIR 1985 Karnataka 270, and in the said case it has been held as follows :--
"Then the next question is what is the remedy to a party complaining of fraud or misrepresentation being perpetrated, on her. Section 151 CPC reads as :--
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Code to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
The learned author Shri Mulla has enumerated a list of various cases in which the Court would be justified in invoking the inherent jurisdiction under Section 151, CPC. The learned author Shri Mulla has stated in his CPC 14th Edition, Vol. I page 792 at Sl. No. 29 as :--
"to set aside an order recording compromise obtained by fraud."
The learned author Shri Mulla has referred to Bindeswari Prasad v. Debendra Prasad, AIR 1958 Patna 618. It has been laid down in Bindeswari Prasad v. Debendra Prasad, AIR 1958 Pat. 618, as :
"Where fraud is practised on the Court in obtaining an order recording the compromise, the Court is perfectly justified in setting aside the same under its inherent powers."
The learned author Shri Mulla has further stated on page 793 at Sl. No. 49 as :--
"to vacate an order obtained by fraud, as where an order is made recording the adjustment of a decree (Order 21, Rule 2), and the adjustment has been brought about by fraud practised by one party upon another."
The learned author Shri Mulla has referred to Paranjpe v. Kanade, (1882) ILR 6 Bom. 148. Thus it becomes crystal clear that the Court is not helpless even in cases where the compromise has been recorded by the Court when fraud has been perpetrated by either of the parties. Thus, it appears to me, that Section 151, CPC is the only section that is applicable to such cases. Otherwise, the Court will have to shut its eyes against fraud or misrepresentation which might have vitiated the compromise."
(Underlining mine)
4. This controversy has been finally set at rest by the Supreme Court in the case of Banwari Lal v. Smt. Chando Devi, AIR 1993 SC 1139, wherein it has been held as follows :--
"14. The application for exercise of power under proviso to Rule 3 of Order 23 can be labelled under Section 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise."
5. In view of the aforesaid authoritative pronouncement, I have no manner of doubt that an application under Section 151 of the Code of Civil Procedure for setting aside the compromise decree on the allegation that the same is unlawful, is maintainable under Section 151 of the CPC.
6. The only submission made on behalf of the petitioners having no substance, I do not find any merit in this writ petition and it is dismissed accordingly with cost. Hearing fee Rs. 1100/-. As the matter is pending since long, I do hereby direct the petitioners and the respondents to appear before the trial Court on 27-3-2000. The trial Court shall make endeavour to dispose of the application within three months from the date of appearance of the parties.