Rajasthan High Court - Jaipur
Smt Rukma And Others vs Deva Ram on 17 August, 2010
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Smt. Rukma & Ors. V/s. Deva Ram (S.B. Civil First Appeal No.344/2010) S.B. Civil First Appeal Under Section 96 of Civil Procedure Code Date of Order :: August 17, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Arvind Gupta for the appellants. Mr. R.K. Daga for the respondent.
The appellants are aggrieved by the order dated 04.03.2009 passed by the Additional District Judge (Fast Track) No.2, Jaipur District, Jaipur, whereby the learned Judge had accepted the application filed under Order 7 Rule 11 CPC by the respondent, and has dismissed the suit filed by the appellants.
The facts of the case are that a suit for cancellation of compromise dated 08.08.1980 and judgment dated 24.09.1980 passed by Sub-Divisional Officer, Jaipur District, Jaipur was filed by the appellants. In the said plaint, it has been stated that the said compromise and order dated 24.09.1980 never came to their knowledge at that point of time. It has been further stated that the said compromise was filed without their knowledge and is based on fraud and collusion. In the plaint, it was also specifically stated that the said fact of dismissal of appeal on the ground of compromise never came into their knowledge at that point of time. Rather it was brought into the notice of the appellants on 02.06.2008 when the written statement was filed by the respondent in a separate revenue suit pending before the SDO, Jaipur filed by the appellants for declaration and injunction. The respondent filed his written statement and also filed an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground of limitation as well as under the provision of order 23 Rule 3A CPC. The appellant filed reply to the said application. The Court below instead of framing the issue on the question of limitation and maintainability of the suit, heard the application of the respondent filed under Order 7 Rule 11 CPC. It rejected the suit vide order dated 04.03.2009 on the basis of delay and on the basis of the suit not being maintainable in the light of Order 23 Rule 3A CPC. Hence, this appeal before this Court.
The learned counsel for the appellants has contended that the suit was for declaring the compromise, and instrument, which was entered into between the parties, as void and also for delcaring the order passed by the learned SDO as void. According to the learned counsel, as the compromise had been entered into due to fraud, the same deserves to be declared as void and deserves to be cancelled and set aside. Secondly, according to Article 59 of the Limitation Act, 1963, the period of limitation prescribed is three years from the date of knowledge. Since the appellants came to know about the existence of the compromise on 02.07.2008, since they had filed their suit immediately thereafter, within a period of ten days, therefore, the suit was certainly within the period of limitation as prescribed by Article 59 of the Act. Moreover, the learned Judge has erred in holding that the bar contained in Order 23 Rule 3A CPC was applicable. For, an order passed by the learned SDO does not fall within the definition of word decree as defined in CPC.
On the other hand, Mr. R.K. Daga, the learned counsel for the respondent, has relied upon the case of Gopal Lal V/s. Babu Lal & Ors. [RLW 1996 (1) Raj 30] in order to raise the contention that in case a compromise has to be challenged, the same should be done before the very court where the compromise was submitted and the order was passed. In the present case, since the compromise was submitted before the learned SDO and the order was duly passed by the learned SDO, therefore, the suit should not have been filed before the Civil Court, but before the SDO. Hence, the suit was certainly not maintainable before the Civil Court. Thus, he has supported the impugned order dated 04.03.2009.
In the case of Gopal Lal (supra) this Court has clearly held that in case validity or veracity of a compromise needs to be challenged, the same should be done before the Court where the compromise was submitted. In the present case, the compromise was submitted before the learned SDO. Therefore, the suit for declaring the compromise as void and for setting it aside should have been filed before the learned SDO and not before the Civil Court.
However, the learned counsel for the appellant is apprehensive that in case the appellants were now to file a case before the SDO, the entire issue of limitation would crop up. Suffice it to say that the contention raised by the learned counsel for the appellants before this Court vis-a-vis the existence of Article 59 would still be available to the appellants to be raised before the SDO. Moreover, the SDO Court is duty bound to consider the benefit of Section 14 of the Act while calculating the period of limitation. Therefore, this court does not find any perversity in the impugned order and directs the appellants to approach the SDO Court for adjudication of this controversy.
With these observations, this first appeal is, hereby, disposed off.
(R.S.CHAUHAN)J. A.Asopa/-