Delhi High Court
Narinder Kumar And Anr. vs Tilak Raj And Ors. on 14 September, 2001
JUDGMENT V.S. Aggarwal, J.
1. On 9th May, 1997 following preliminary issues had been framed:-
"Whether the suit of plaintiffs is barred under Order 23 Rule 3A of the Code of Civil Procedure on the grounds contended by defendant No. 1 in written statement?
2. The facts which lead to the above said controversy are that Narinder Kumar and Kamal Kumar have filed the present suit for partition alleging that they are sons of Pyare Lal who died on 13th August, 1977. He left behind the plaintiff and defendants 2 to 5 as the legal heirs. Plaintiff No. 2 is a minor and has filed the present suit through his elder brother Narinder Kumar, plaintiff No. 1. During the life time of Pyare Lal a property bearing municipal No. 91, Central Market, Lajpat Nagar, New Delhi was acquired by Pyare Lal and his father Sunder Dass jointly. During the life time of Pyare Lal he continued to possess rights conferred by virtue of the conveyance deed dated 30th July, 1970. Defendant No. 1 is the brother of Pyare Lal. Subsequently defendant No. 1 started claiming rights over the share of Pyare Lal also in the said property. Pyare Lal had got a notice issued to defendant No. 1 and informed the Land Development Office that Pyare Lal continues to be full and exclusive owner of half share of the said property. On 13th August, 1977 Shri Pyare Lal died.
3. After the demise of Pyare Lal his heirs were substituted in the record of Land and Development Office. A demand was made to defendant No. 1 for handing over possession of the property. The heirs of Pyare Lal filed a civil suit for possession of half share of the property in question. During the pendency of the suit some evidence was recorded. Defendant No. 1 is alleged to have put some pressure on defendants 2 to 5 more particularly defendant No. 2 (mother of the plaintiffs) who is a guardian of the plaintiff, to withdraw the said suit. They had been pressured that all the heirs of Pyare Lal would be boycotted from the society for the rest of the life. Defendants 2 to 5 were already very socially low on account of the death of Pyare Lal. Defendant Nos. 2 to 5 keeping in view the threats had withdraw the said suit without getting the controversy determined on merits.
4. It is alleged that plaintiffs were minor at that time. They were even minors when suit was withdrawn. Their rights were important vis-a-vis the property in question. The withdrawal of the suit was not in their interest and therefore the said statement withdrawing the suit on their behalf does not bind them. The said withdrawal is stated to be contrary to law. In these circumstances the plaintiffs claim that compromise decree dated 14th March, 1983 in Suit No. 25/78 is not binding on the plaintiffs. They also pray that mutation of the property that has been effected in the name of defendant No. 1 should also be declared to be illegal and direct defendants 6 to 7 to mutate half share of Pyare Lal in favor of heirs of Pyare Lal. A partition decree has also been claimed.
5. The civil suit as such has been contested basically by defendant No. 1. He had asserted that suit is barred under Section 34 of the Specific Relief Act because the plaintiffs and defendants 2 to 5 are not in possession of the suit premises. Plea has also been raised that present suit is barred by virtue of the provision of Order 23 Rule 3A of the Code of Civil Procedure. Rule 3A of Order 23 prescribes that no suit shall be filed to set aside a decree on the ground that compromise on which the decree is based is not lawful. Therefore the suit is liable to be dismissed.
6. During the course of arguments it was this particular fact as to whether Order 23 Rule 3A of the Code of Civil Procedure would bar the present suit that was pressed.
7. Before proceeding further reference can well be made to Order XXIII Rule 3 of the Code of Civil Procedure as it stood before the amendment effected with effect from 1st February, 1977:
"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 (or), 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 as it relates to the suit."
8. From 1st February, 1977 material changes were effected in Order XXIII Rule 3 and in addition to that Order XXIII Rule 3A was added. Presently the relevant rules read:-
"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 as it relates to 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. This clearly show that firstly in Order XXIII Rule 3 it was made mandatory that the compromise has been arrived at in writing and is signed by the parties and it should be so brought to the notice/satisfaction of the Court. In addition to that words "so far as it relate to the parties to the suit, whether or not subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit" were added. Explanation has also been added providing that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to lawful within the meaning of this rule. Order XXIII Rule 3A has further been added which bars a civil suit to be filed to set aside a decree on the ground that the compromise on which the decree is based is not lawful. It is this particular provision which is being pressed into service to allege that a civil suit is not maintainable. But if the plaintiffs have any remedy they should only file necessary application before the court where the alleged compromise which is purported to be set aside had been arrived at.
10. Learned counsel for the plaintiffs highlighted the fact that the remedy as such is available because according to her, provisions of Order XXXII Code of Civil Procedure which are special provisions with respect to minors have not been complied with. She specifically referred to Order XXXII Rule 7 of the Code of Civil Procedure to urge that a civil suit was the only remedy before the minors to get the decrees set aside. Order XXXII Rule 7 of the Code of Civil Procedure runs as under:-
7. Agreement or compromise by next friend or guardian for the suit-(1) No next friend or guardian for the suit shall, without the leave of the court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.
(2) Any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor.
11. It is clear from the perusal of Order XXXII Rule 7 which has been reproduced above when considered with the other provisions of Order XXXII that the procedure prescribes for safeguarding the interest of the minors so far as practicable a duty even has been cast on the court in this regard. Order XXXII Rule 7 forbids the next friend or guardian to enter into a compromise or agreement on behalf of the minors without the express leave of the court. It requires the court to consider in exercise of its judicial discretion the propriety of the same and watch the interest of the minor. But the material question that still comes for consideration is as to whether the civil suit by itself would be maintainable or not.
12. Learned counsel for the plaintiff relied upon the decision from the Patna High Court in the case of Chandeshwar Sharma and Anr. v. Jaikishore Sharma and Ors. wherein according to the learned counsel, it has clearly been held that the civil suit would also be maintainable for setting aside of the compromise but before adverting to the ratio decidendi of the cited decision reference must be made to the facts that were before the High Court of Patna. Therein the civil suit had been filed before the amendment of the Code of Civil Procedure and addition of Order XXIII Rule 3 with effect from 1st February, 1977. It was in this backdrop that it was held that a civil suit was maintainable. The Patna High Court was not concerned and had not considered the impact of Order XXIII Rule 3A of the Code of Civil Procedure and therefore, indeed the ratio decidendi of the said decision will not apply to the facts of the present case whereby it was held that minor has two remedies, namely to file a civil suit or to file an application before the same court.
13. Attention of the court had further been drawn to the decision of the Punjab High Court in the case of Daulat Ram v. Surinder Kumar and Ors. . In that case the compromise was arrived at in an appeal. The question before the Division Bench of the court was as to whether the decree so arrived at should be set aside or not. The same had been given on behalf of the minor by the guardian. The answer was given in the affirmative. Almost in identical terms was the decision of the Orissa High Court in the case of Bhagabat Sahu v. Parbati Samal and Ors. . In the cited case it was held that where judgment debtors were not properly represented the decree then they can file a separate suit. Some of them were minors and it was held that they were not even properly represented. The Orissa High Court had drawn a distinction between a case where minors are not adequately represented from the commencement and the proceedings at its inception is a nullity and a case where minors are adequately represented and there is a duly constituted proceedings where the guardian acts for some time and them omits to take necessary steps. Herein once again as referred to above, the question for consideration before the Orissa High Court was the scope of Section 47 of the Code of Civil Procedure rather than the impact of Order 23 Rule 3 of the Code of Civil Procedure. Therefore without hesitation it must be held that the cited decision will not apply to the facts of the case.
14. The Supreme Court in the case of Dhirendra Kumar Garg and Ors. v. Sugandhi Bai Jain and Ors. had held that in view of Order XXXII of the CPC it is essential for the court to grant permission to the guardian to enter into the compromise only after consideration of the relevant facts. In the cited case an appeal was filed against an eviction order. During pendency of the same, the landlord died and his legal representatives were substituted. The minors were placed under the guardianship of their mother, according to which the entire decree was set side. The Supreme Court held that on the facts of it the compromise was one sided and minors had given up their right that had accrued by virtue of order of eviction of the trial court. It was further held that the guardian had acted in gross negligence and the compromise therefore was set aside. Indeed, a separate suit had been considered but as referred to above as in the other cases this controversy had arisen even before the amendment of the Code of Civil Procedure and therefore necessarily it has no impact or relevance with respect to the present controversy in hand.
15. Strong reliance in this regard was placed on the subsequent decision of the Supreme Court in the case of Banwari Lal v. Chando Devi and Anr. . On consideration of Order XXIII Rule 3 the court had held that trial court can entertain application for consideration as to if the compromise so arrived at was lawful or not. The Supreme Court even considered as to the scope of Order XXIII Rule 3A and addition of the explanation to Order XXIII Rule 3. It was held:
"By adding the proviso along with an explanation the purpose and the object of the amending Act appears to be 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 Indian 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 basis of a compromise saying:
"3-A. 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."
16. Subsequently the conclusion was further drawn:
".....But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23. As such a right has been given under Rule 1-A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute."
17. In other words, it had been held in ambiguous terms that after the amendment with effect from 1st February, 1977 the remedy of filing a separate suit is not available in cases covered by Order XXIII Rule 3A of the Code of Civil Procedure. The concerned party has to apply with the same court for setting aside of the judgment and the decree.
18. Still it was urged that since Order XXXII Rue 7 is a special provision it must prevail over the general provision of Order XXIII Rule 3 and Order XXIII Rule 3A of the Code of Civil Procedure. The first impression was that the said argument should prevail. This is for the reason that law is well settled that when there is a special provision it will score over the general provision it will score over the general provisions. But it becomes necessary to refer back to the provisions of Code of Civil Procedure. Order XXXII Rule 7 gives the right to a minor to challenge the decree. More often than once as already referred to above, it was held that the minor can file a civil suit or approach the same court for setting aside of the decree in case it is violative of the provisions and the procedure. This was the law as was accepted before 1st February, 1977. With the amendment of the CPC as referred to above. It has specifically now been provided that a civil suit cannot be filed no exceptions have been drawn. A minor would also be included. Under Order XXXII Rule 7 a right to file a separate suit by itself would be barred under Order XXIII Rule 3A CPC. Thus, if the minor is to file an application before the same court it cannot be termed that any prejudice even would be caused.
19. Afterall when the minor attains the majority he steps into the shoes of the guardian. If the suit has already been decided in that event he gets the right to challenge judgment and decree even if it is unlawful. The plaintiffs also claim that judgment and the decree so passed is not lawful because it does not conform to their interests. If that be so they necessarily do not have any special procedure prescribed. In that event they have to come back to the general provisions of Order XXIII Rule 3A and separate civil suit in this regard will not be maintainable.
20. For these reasons the issue is decided against the plaintiff and it is held that separate suit itself is not maintainable. As a consequence of the findings the civil suit fails and is dismissed. However, before drawing the curtain on the controversy it must be held that nothing said herein is any expression of opinion on the merits of the matter and further that plaintiff, if so advised, may file the necessary application before the appropriate court.