Madras High Court
A.Sivanandam vs T.Radha on 13 February, 2013
Author: T.Mathivanan
Bench: T.Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13.02.2013 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.R.P.(NPD).No.842 of 2005 A.Sivanandam ... Petitioners - Vs - 1. T.Radha 2. Minor T.Nathiya 3. T.Rathna 4. T.Tamilselvi 5. T.Santhi 6. T.Sangeetha ... Respondents Prayer : This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, against the fair and decretal Order dated 25.01.2005 and made in I.A.No.742 of 2003 in O.S.No.199 of 2000, on the file of the learned Principal Sub-Court, Krishnagiri. For Petitioner : Mr.P.Mani For Respondents : Mr.C.Jagadish for R1 and R2 R3 - No appearance Mr.K.P.Suresh Kumar for R5 and R6 O R D E R
This memorandum of civil revision is directed against the fair and decretal Order dated 25.01.2005 and made in I.A.No.742 of 2003 in O.S.No.199 of 2000, on the file of the learned Principal Sub-Court, Krishnagiri.
2. On perusal of the records, it is revealed that the respondents 1 and 2 herein have instituted a suit in O.S.No.199 of 2000, through their next friend/guardian namely Mrs.V.Gowrammal (maternal grandmother) as they were being minors, against the respondents 3 to 6 and the revision petitioner herein seeking the relief of partition:
a. To divide the suit schedule properties into six equal shares and allot two shares to the minor plaintiffs and four shares to the defendants 1 to 4;
b. Directing the defendants 1 to 4 to put the minor plaintiffs in separate possession of the allotted share within the specific time;
c. In case, the defendants 1 to 4 failed to do so, to permit the minor plaintiffs to file an application for passing of final decree;
d. To grant a decree for accounting against the defendants 1 to 5;
e. To grant permanent injunction restraining the first defendant from effecting any kind of alienation of the suit property in favour of the fifth defendant or others;
f. For costs of the suit.
3. During the pendency of the suit, a memorandum was filed on behalf of the plaintiffs on 09.03.2001 saying that the matter was getting compromised between the parties and thereby they had reported settlement out of Court and they had also prayed for refund of half of the Court fee.
4. That on 12.03.2001, the above said memorandum was recorded and in pursuant to the said memorandum the suit was dismissed as settled out of Court and half of the Court fee was also ordered to be refunded less 5%.
5. Thereafter, as rightly addressed by Mr.P.Mani, learned counsel for the petitioner/fifth defendant, after the lapse of 2 = years, an interlocutory application in I.A.No.742 of 2003 was filed by the respondents 1 and 2 to set aside the Order of dismissal of suit as settled out of Court dated 12.03.2001 and to restore the same on file so as to enable them to get along with the suit on trial.
6. This was vehemently opposed by the revision petitioner/fifth defendant. But, the other respondents viz., respondents 3 to 6 / defendants 1 to 4 had not contested the interlocutory application as they remained ex parte.
7. After hearing both sides, the learned Principal Subordinate Judge at Krishnagiri had allowed the application on 25.01.2005 after setting aside the Order of dismissal of the suit.
8. Being aggrieved by the Order dated 25.01.2005, the revision petitioner, being the fifth respondent in the application in I.A.No.742 of 2003, has knocked at the door of this Court with this memorandum of Civil revision.
9. Heard Mr.P.Mani, learned counsel for the petitioner and Mr.C.Jagadish, learned counsel for the respondents 1 and 2 and Mr.K.P.Suresh Kumar, learned counsel for the respondents 5 and 6.
10. Mr.P.Mani, has based his arguments on the following four grounds:
i. The respondents 1 and 2 have filed the interlocutory application under Order IX Rule 9 and Section 151 C.P.C., to restore the suit as if the suit was dismissed for default or for non-prosecution. In fact, the suit was dismissed as settled out of Court and therefore the provisions envisaged under Order IX Rule 9 C.P.C., even the provisions under Section 151 C.P.C., have no application.
ii. Since the suit was dismissed as settled out of Court, based on the memorandum dated 09.03.2001, the proper course open to the respondents 1 and 2 / plaintiffs is to file a fresh suit for declaration to declare that the decree dismissing the suit as settled out of Court is null and void.
iii. The suit was dismissed as settled out of Court on 12.03.2001. But, the application to set aside the Order of dismissal of the suit dated 12.03.2001 appears to have been filed on 19.11.2003 i.e., after two years and eight months and therefore the petition itself ought to have been dismissed as barred by limitation.
iv. Though it is stated in the memorandum dated 09.03.2001 that the matter had been compromised between the parties, virtually no agreement of settlement was signed by the parties and the same was also not recorded by the Court and no decree was also passed in pursuant to the compromise.
Therefore, he has urged that the impugned Order dated 25.01.2005 is liable to be set aside and in consequence thereof the application in I.A.No.742 of 2003 is liable to be dismissed.
11. Prior to enter in to discussions, with regard to the grounds as afore-stated, this Court finds it better to place it on record the following facts.
11.1. It is significant to note here that one Mrs.V.Gowrammal, being the next friend/maternal grandmother of the respondents 1 and 2 had filed the suit in O.S.No.199 of 2000 on behalf of the respondents 1 and 2 as they were minors at that time, for partition and other reliefs.
11.2. It may also be very relevant to note here that in the memorandum dated 09.03.2001, which appears to have been filed on behalf of the minor plaintiffs by their counsel, it is simply recited that the matter has been compromised between the parties and as such they are reporting settlement out of Court and they had also requested the Court to refund half of the Court fee.
12. In this connection, this Court would like to point out that in the affidavit filed in support of the application in I.A.No.742 of 2003, the first petitioner Ms.T.Radha, who is also representing her own minor sister T.Nadhiya/second petitioner as next friend, has stated that she was born on 27.07.1985 and had attained majority on 28.07.2003.
13. She has also stated that though the suit was filed for partition and for other reliefs, no shares were allotted to them and no money was paid towards their shares. She has further stated that in fact no benefit was derived by them from the decree.
14. It shows that the next friend viz., Mrs.V.Gowrammal, who is the maternal grandmother of the respondents 1 and 2, had acted against the interest of the minors.
15. The first respondent has also stated in her affidavit that since their grandmother, who was supporting them originally, had subsequently joined with the hands of the first respondent, she is not interested in getting along with the above suit and therefore a memorandum was simply filed on 09.03.2001 saying that the matter was compromised between the parties and that the suit might be dismissed as settled out of Court.
16. Even according to Mr.P.Mani, the learned counsel appearing for the revision petitioner/fifth defendant, no compromise was signed by the parties and that no decree was passed in pursuant to the compromise.
17. Under this circumstance, this Court finds that it may be expedient to extract the provisions envisaged under Rule 3 to Order XXIII of the Code of Civil Procedure.
''R.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 as 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.''
18. On coming to the instant case on hand, admittedly, no such agreement or compromise was reduced into writing or signed by the parties, even though it is stated in the memorandum dated 09.03.2001 that the matter has been compromised between the parties.
19. Rule 3A to Order XXIII C.P.C., specifically says that no suit lie to set aside the decree on the ground that the compromise, on which the decree is based, was not lawful.
20. It may also be relevant to extract the provisions of Rule 7 to Order XXXII C.P.C. It reads as follows:
''R.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.
(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:
Madras High Court Amendment to sub rule (1A) (Dis.No.1647 of 1910):
''(1A) Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or compromise or action proposed is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No.24 in Appendix D to this schedule.
Provided that the opinion so expressed, whether in the affidavit or in the certificate, shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.
(2) Any such agreement or compromise entered into without the leave of Court so recorded shall be voidable against the all parties other than the minor.''
21. It is obvious to note here that neither the provisions of Order XXIII Rule 3 nor the provisions of Order XXXII Rule 7 have been followed in this case.
22. At the tail end of the second paragraph of her affidavit, the first respondent has stated that she is filing a separate petition to remove their next friend 'viz' Mrs.V.Gowrammal.
23. In this connection, a question, with respect to the competency of the first respondent to file the application in I.A.No.742 of 2003 for herself and on behalf of the second respondent as her next friend, was raised by Mr.P.Mani during the course of his argument.
24. There is no controversy with regard to the attaining of majority of the first respondent. She herself has stated in the opening portion of the Paragraph No.2 of her affidavit that she was born on 27.07.1985 and attained majority on 28.07.2003. It is also not disputed that as on the date of filing of the application in I.A.No.742 of 2003, the second respondent was a minor and therefore the first respondent has stated that she represents the second respondent as her next friend as she being her sister. Though the petitioner has stated that she is filing an application to remove their erstwhile next friend by name Mrs.V.Gowrammal, their maternal grandmother, no document is available to show that any such application is filed to remove their former next friend.
25. It seems that there is a thin layer lying in between the phrases 'guardian-ad-litem' and 'next friend'. The expression 'guardian-ad-litem' is constituted by an Order of the Court, whereas a ''next friend'' automatically continues himself, by taking steps.
26. As per the Madras High Court amendment to Rules 3 and 4 of Order XXXII C.P.C., Rules 3 and 4 have been deleted and in lieu thereof a new rule, as set-forth in the Code, has been substituted. As per the Madras High Court amendment, new rule, qualifications to be a next friend or guardian have been carved out. It reads as follows:
''3. Qualifications to be a next friend or guardian.- (1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of that person is not adverse to that of the minor and that he is not in the case of a next friend, defendant, or in the case of a guardian for the suit, a plaintiff.''
27. In the given case on hand, the 1st respondent / 1st petitioner has attained majority on 28.07.2003, as she was born on 27.07.1985, and therefore her competency to maintain the application in I.A.No.742 of 2003, for herself as well as on behalf of the 2nd respondent as her next friend cannot be questioned.
28. It is significant to note here that the date of birth of the 1st respondent/petitioner is not disputed.
29. Mr.P.Mani, learned counsel for the petitioner/5th defendant has mainly contended that the respondents 1 and 2 had filed the application in I.A.No.742 of 2003 under Order IX Rule 9 r/w. Section 151 of C.P.C., to set aside the order of the dismissal as if the suit was dismissed for non-prosecution. He has also submitted that the provisions of Order IX Rule 9 of C.P.C. could not be applied in this case and therefore, he has urged to set aside the impugned order.
30. Secondly, he would contend that if at all the respondents 1 and 2 wanted to challenge the dismissal of the suit, they should have filed a fresh suit for declaration to declare that the decree dismissing the suit as settled out of Court is null and void.
31. This Court has considered the submissions made by Mr.P.Mani, learned counsel for the petitioner and found, it is not able to be discerned; because it is the common judicial parlance that the mis-quoting of the provisions of law will never take away the rights of the parties concerned to get the appropriate relief because, the trial court is fully secured with the inherent power conferred under Section 151 of the C.P.C., to take a fair decision in the interest of justice. Since the petition in I.A.No.742 of 2003 has also been filed under Section 151 of C.P.C., the impugned order of the trial court cannot be invalidated. The inherent power of the Court under S.151 of the Code is in addition and complementary to the power expressly conferred under the Code. The Court exercises this power to make the order ex debito justitiae. The power of S.151 of the Code can be exercised for passing an order in infraction of the prescribed procedure. This principle is laid down in [Bankim Bihari Das v. Md. Husain Ali, 2011 AIR CC 205 (206) (Gau)].
32. The Apex Court has also, in [Lalit Kishore v. Meeru Sharma, (2009 (9) SCC 433 (434) has observed that ''the Court is always empowered to satisfy itself as to whether a party before it suffers from mental illness or not. The primary duty of the Court is to see that truth comes out. The Court has complete inherent power in an appropriate case under S.151 of the Code to pass all orders for doing complete justice to the parties to the suit''.
33. In the light of the ratio laid down by the Apex Court in the above cited decision, this Court finds that the impugned order of the trial court cannot be disturbed as false or against the provisions of law.
34. It is to be noted that the 1st respondent/petitioner has stated in her affidavit that the suit was filed for partition and other reliefs on their behalf by their maternal grand mother Mrs.Gowrammal, while she and her sister (R1 and R2) were minors. It is also to be noted that according to the 1st respondent, though the suit was filed for partition and other reliefs, no shares were allotted to them and no money was given to them and they were also not compensated by paying money towards their share and in fact, no benefit was provided to them. On the basis of a memorandum dated 09.03.2001, the suit was dismissed as settled out of Court. According to her, no compromise was entered in to and she and her sister have never derived any benefits out of the alleged compromise.
35. In this connection, this Court would like to have reference to the proviso to Rule 3 of Order 23 of C.P.C., wherein, it is stated that where it is alleged by one party and denied by the other that an adjustment or satisfaction had been derived 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 an adjournment.
36. This Court has also found that the decision of the Apex Court in Rani Bai v. Yadunandan (AIR 1969 SC 1118 : 1969 (1) SCC 604) would be more appropriate to the fact situation arise from the given case on hand. In the above cited decision, the Apex Court has held that whether there is a partial compromise, and the said compromise is a prejudicial to the interest of other parties not joining as held by the Supreme Court of India, such compromises cannot be recognised.
37. Further as contemplated under Sub-Rule 1(A) of Rule 7 to Order XXXII of C.P.C., no application was filed by the next friend or guardian of the respondents 1 and 2 viz., their grand mother seeking the leave of the Court to get the matter compromised between the parties to the suit. As it is seen from the provisions of Sub-Rule 1 (A) of Rule 7 to Order XXXII, it is mandatory to file an application for seeking leave, and it shall also be accompanied by an affidavit of the next friend or guardian for the suit to seek the leave of the Court to enter into a compromise with the other side of the suit, for the benefit of the minors.
38. As it is observed in the fore going paragraphs as per the Madras High Court Amendment (Dis.No.1647 of 1910) in respect of sub-rule(1A) of Rule 7 to Order XXXII, any such agreement or compromise entered into without the leave of Court so recorded shall be voidable against all parties other than the minor.
39. While advancing his argument, Mr.P.Mani, learned counsel for the petitioner, in support of his contention has placed reliance upon the following two decisions:
(i) Gurpreet Singh v. Chatur Bhuj Goel (1988(1)SCC 270)
(ii) Amrit Lachhman v. Smt. Ruri and another (AIR 1947 P&H 199).
40. In the decision 1st cited, it is held that :
The whole object of the amendment of Rule 3 to Order XXIII by adding the words 'in writing and signed by the parties' is to prevent false and frivolous pleas that a suit had been adjusted wholly or in part by any lawful agreement or compromise, with a view to protract or delay the proceedings in the suit. The applicability of the first part of Rule 3 cannot be confined to a compromise effected out of court. When the parties enter into a compromise during the hearing of a suit or appeal, Court must insist upon the parties to reduce the terms of the compromise into writing and to sign the same. This requirement cannot be dispensed with.
41. In the decision 2nd cited supra, in paragraph No.6, it is held that :
''The main question that arises for decision in this case is that if a minor challenges the action of his next friend and says that it was due to a fraud having been played upon him that his suit was withdrawn to his prejudice, is his remedy by a review application or a regular suit ? The consensus of authority is in favour of the view that in such circumstances, the proper remedy is to challenge such a decree by a separate suit''.
42. Insofar as the above observation made by the Punjab & Haryana High Court is concerned, this Court is of view that it is not made applicable to the facts of the instant case on hand. Because Order XXIII Rule 3A specifically says that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.
43. In V.K.Gwal v. S.K.Yadav, 1997 AIHC 3469 (3471) (all) : 1997 (31) All LR 257 : 1997 (3) Civil LJ 622, it is held that the rule prohibits a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. It does not provide a procedure for setting aside the compromise decree.
44. Mr.Jagadish, learned counsel appearing for the respondents 1 and 2, in support of his contention has placed reliance upon the decisions of the Apex Court in Horil v. Keshav and another ((2012) 5 SCC 525). In this case, the Apex Court at paragraph No.9 has observed as follows:
''9. 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.''
45. In Banwari Lal v. Smt. Chando Devi (through L.R.) and another (AIR 1993 SC 1139), the Apex Court has observed as follows:
A party challenging a compromise can file a petition under proviso to R.3 of O.23, or an appeal under S.96(1) of the Code, in which he can now question the validity of the compromise in view of R.1A of O.43 of the Code. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to R.3 and as such not lawful. In the instant case the plaintiff challenged the order recording compromise on the ground his counsel in collusion with defendant of the said suit had played a fraud on him by filing a fabricated petition of compromise although no compromise had been effected between him and the defendant. Further details of fraud were mentioned in the said petition and it was stated that the alleged compromise itself was void, illegal and against the requirement of O.23, R.3. Therefore, the entertaining of the application filed on behalf of plaintiff and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise, by the trial Court was proper. Since the material produced on the record showed that the compromise was not lawful within the meaning of R.3, the order recording compromise could be recalled.
46. Further, on the same line, Mr.C.Jagadish, learned counsel for the respondents 1 and 2 has also placed reliance upon the following decisions:
1.Gurpreet Singh v. Chatur Bhuj Goel (1988(1)SCC 270).
2.Suresh Kumar Kothari v. Dr.T.Ramachandran and others ((2007) 2 MLJ 955.
3.S.Mohammed Iqbal v. M.Padmanaban (1999(III) CTC 116).
4.Venkataswami Naicker v. Balakrishna Naicker, and others (59 LW 510).
5.Al.Vr.St.Ramanathan Chettiar v. A.L.VR.St.Veerappa Chettiar and others (AIR 1956 Madras 89).
6.Kaushalaya Devi and others v. Baijnath Sayal (deceased) and others (AIR 1961 SC 790).
47. This Court has given its due consideration to the decisions cited above. Having regard to all the relevant facts and circumstances, this Court finds that the memorandum of compromise which was filed on behalf of the minors is not at all within the bounds of law and as contemplated under Sub-Rule(1A) of Rule 7 to Order XXXII, no application was filed by the next friend of the respondents 1 and 2 seeking leave of the Court to get the matter compromised with the defendants for the welfare of the minors i.e., R1 and R2.
48. In this circumstance, this Court is of considered view that the impugned order need not be disturbed and therefore, the revision petition is dismissed and the impugned order is confirmed. However, there shall be no order as to costs.
13.02.2013 Index:Yes/No Internet:Yes/No ssn To The Principal Sub-Court, Krishnagiri.
T.MATHIVANAN, J., ssn C.R.P.(NPD).No.842 of 2005 13.02.2013 http://www.judis.nic.in