Chando Devi vs Amar Nath Garg

Ashok Bhan, J.—The facts giving rise to the present revision are as under :

One Banwari, hereinafter referred to as the plaintiff, filed a suit for possession byway of preemption of land measuring 9 kanals situate in village Uchanna District Karnal. The sale was effected by Diwan Amar Nath Garg, hereinafter referred to as the vendor in favour of Smt. Chando Devi deceased now represented by Smt. Shanti Devi hereinafter referred to as the vendee petitioner. Smt. Chando Devi died during the pendency of the revision petition in this Court. On an application made by Smt; Shanti Devi, her daughter has been substituted as her legal representative.

During the pendency of the suit, an application exhibit CI was made on behalf of Banwari, plaintiff, which was duly signed by him and his counsel stating therein that a compromise between the parties has been reached at the intervention of the members of the Panchayat; that the possession of the land in dispute had been handed over to Smt. Chando Devi at the time of registration of the Sale Deed and that he had no right whatsoever, left in the land in dispute, henceforth. A prayer was also made that on the of the facts stated above, the suit be dismissed in terms of the compromise and he be allowed to withdraw 1/5th preemption money which has been deposited at the time of filing of the suit and that the parties be allowed to bear their own costs.

This application was titled as Razinama agreement although, it was in the nature of withdrawal of the suit which would fall under Order 23, Rule 1 C. P. C. Trial Court vide its order dated 27th February, 1991 dismissed the suit of the plaintiff, as stated in document exhibit C 1. On 3rd April, 1991, an application was made by Banwari, plaintiff, for restoration of the suit and for condonation of delay in filing the application for restoration. The reason stated in the application was that he had never authorised his counsel to enter into any compromise or to withdraw the suit; that a fraud has been played upon him and the suit be restored and be decided on merits between the parties. A separate application under section 5 of the Limitation Act for condonation of delay was also filed. By two separate orders of the same date, both the applications, i. e., for restoration of the suit as well as for condonation of delay in filing of the restoration application were allowed.

Vendee being aggrieved against the order of the trial Court has filed the present revision petition in this Court.

The trial Court came to the conclusion that document exhibit CI was a compromise which did not bear the signatures of the vendee or his counsel, that under Order 23, Rule 3 C. P. C. a compromise had to be signed by the parties and the parties had to make a statement in support thereof in the Court. Since it was not done in the present case, exhibit C1 was not a compromise in the eyes of law and accordingly the trial Court recalled its earlier order dated 2721991, and restored the suit to its original number.

Counsel for the vendeepetitioner has argued that the present case did not fall under Order 23, Rule 3 of the Code of Civil Procedure and in fact an application was made by the plaintiff Banwari under Order 23, Rule I C. P. C. for withdrawal of the suit as having been compromised. The terms of the agreement have not been spelt out in exhibit C1 It contains unilateral declaration by the plaintiff and his counsel that the parties have entered into a compromise and, therefore, he be permitted to withdraw the suit and further to withdraw 1/5th amount deposited by him as preemption money at the time of filing of the suit. I find force in this submission of the learned counsel for the petitioner. Exhibit C1 was, in fact, an application for withdrawal of the in which would fall under Order 23, Rule I C. P. C. suit. This application was made, on the basis of some compromise which was entered into before the Panchayat. The contents of such agreement were, never placed on record. Such an application has to be treated as simple application for withdrawal of the suit. Exhibit CI was duly signed by the plaintiff and his counsel. The plaintiff was well within his right to withdraw the suit without assigning any reason. In the application, although a reason has been stated that the suit is being withdrawn as having been compromised, but this would not put exhibit C1 to be a compromise which is to be treated as one under Order 23, Rule 3 C. P. C.

Accordingly, this Revision Petition is accepted, the impugned order of the trial Court dated 20th September, 1991 is set aside and the application filed by the petitioner for restoration of the suit is dismissed. There will be no order as to costs.