Allahabad High Court
Om Prakash Rai And 3 Others vs Board Of Revenue And 9 Others on 10 September, 2020
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 4 Case :- WRIT - B No. - 853 of 2020 Petitioner :- Om Prakash Rai And 3 Others Respondent :- Board Of Revenue And 9 Others Counsel for Petitioner :- Virendra Singh,Shyam Singh Counsel for Respondent :- C.S.C.,Bhupendra Kuamr Tripathi,Bhupendra Kumar Triathi,Himanshu Pandey,Pradeep Kumar Dwivedi Hon'ble Prakash Padia,J.
1. Heard learned counsel for the petitioners, learned Standing Counsel for the respondent nos.1 to 3, Sri K. K. Pandey, Advocate, holding brief of Sri Himanshu Pandey, learned counsel for the respondent no.4, Sri P. K. Dwivedi, learned counsel for the respondent no.7 and Sri Bhupendra Kumar Tripathi, learned counsel for the respondent no.9.
2. The petitioners have preferred the present writ petition inter-alia with the prayer to quash the order dated 18.2.2020 passed by the Board of Revenue, U.P. at Allahabad/respondent no.1 in Second Appeal No.25 of 1995-96 (Gaurishankar Vs. Manna Devi) as well as compromise dated 28.8.2019.
3. The facts in brief as contained in the writ petition are that a revision was preferred by one Gaurishankar against Manna Devi before the Board of Revenue/respondent no.1. During the pendency of the aforesaid revision a compromise was taken place between Smt. Amla Devi/respondent no.4 and Pradeep Kumary Pandey, Ajeet Kumar Pandey and Avinash Kumar Pandey and Smt. Parwati Devi, respondents no.5 to 8 on 15.7.2019. The same compromise was duly verified by the competent court and thereafter the same was forwarded before the respondent no.1. Taking into consideration the aforesaid compromise application, the second Appeal in question was decided by the respondent no.1 on 18.2.2020. Aggrieved against the aforesaid decision, the petitioners have preferred the present writ petition.
4. It is argued by learned counsel for the petitioners that the compromise application was submitted by the parties by way of collusion. It is further argued that on account of decision taken by the respondent no.1, the plot of the petitioners were altered and the order impugned has been passed without providing any opportunity of hearing to the petitioners.
5. On the other hand it is argued by learned counsel for the private respondents that in case any compromise was taken place and on the basis of the same an order has been passed by the court of law, then only remedy lies with the petitioners to move an appropriate application before the court who recorded the compromise. The question whether the compromise was valid or not could not be looked by the higher courts. It is argued that the remedy is provided to the petitioners to file the appropriate application. Learned counsel for the respondents also relied the provisions contained in Order XXIII, Rule 3 and 3-A of the Code of Civil Procedure.
6. It is true that a compromise forming the basis of the decree can only be questioned before the same court that recorded the compromise and a fresh suit for setting aside a compromise decree is expressly barred under Order 23 Rule 3-A. It is equally true that the expression "not lawful" used in Order 23 Rule 3-A also covers a decree based on a fraudulent compromise hence, a challenge to a compromise decree on the ground that it was obtained by fraudulent means would also fall under the provisions of Order 23 Rule 3-A.
7. In case of Banwari lal v. Chando Devi reported in (1993) 1 SCC 581 the Supreme Court examined the provisions of Order 23 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:
"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 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 or 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 a separate suit for setting aside a decree on the basis of a compromise.
8. The question that falls for determination is as to whether the writ petition filed by the petitioners seeking a writ in the nature of certiorari against the order of of compromise dated 18.02.2020 passed by the respondent no. 1, Board of Revenue is maintainable, in view of the proviso of order 23 Rule 3 and 3-A of the Code of Civil Procedure or not. The provisions of Rule 3 and 3-A of order XXIII of the Code of Civil Procedure is extracted herein-below:-
"3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise, or satisfaction is the same as the subject-matter of the suit:
Provided 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; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation.--An agreement or compromise which is void or voidable under the Indian Contract Act 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this Rule.
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."
9. Legislative intent has been considered in extenso by the Supreme Court in the case of Pushpa Devi Bhagat(Dead) Through LR Sadhna Rai(Smt) Vs. Rajinder Singh and Others, reported in (2005) 5 SCC 566, after taking note of the scheme of Order XXIII Rule 3 and Rule 3A added with effect from 1st February, 1977. The relevant paragraphs are as under:-
"17. The position that emerges from the amended provisions of Order 23 can be summed up thus:
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code."
10. Further in the case of R. Rajanna Vs. S.R. Venkataswamy and Others reported in (2014) 15 SCC 471 it was held that :-
"11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3-A clearly bars a suit to set aside a decree on the ground that the compromise on 2 2014(15) SCC 471 which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3-A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court."
11. Counsel for the respondents relied upon a very recent decision given by the Supreme Court on May 6, 2020 in Civil Appeal No.3961 of 2010 (Triloki Nath Singh Vs. Anirudh Singh (D) thr. LRS & Ors (2020) Law Suit (SC) 391. It was held in the aforesaid case that in case on the basis of compromise any order was passed, the same could only be examined by the same court and not by the other court under the provisions to Rule 3 and 3-A of Order XXIII of the Code of Civil Procedure. The Court should never be a party to imposition of a compromise upon an unwilling party. It is always open for an unwilling party to question on the same by moving an appropriate application under the proviso of Rule 3 of order XXIII before the same Court.
12. Heard learned counsel for the parties and perused the record.
13. From perusal of the record, the Court is of the opinion that in view of the provisions contained in Rule 3 of Order XXIII of the Code of Civil Procedure as well as in view of the law laid down by the Supreme Court as narrated above, the present writ petition filed by the petitioners is not at all maintainable. The only remedy lies with the petitioners to file the appropriate application, if so advised, before the respondent no.1.
14. Accordingly, present writ petition is dismissed.
Order Date :- 10.9.2020 Pramod Tripathi