Des Raj vs Waryam Singh

Dev Darshan Sud, J.—This appeal has been preferred by the appellant challenging the concurrent findings of the two Courts below in a suit instituted for declaration and permanent prohibitory injunction by the respondent/plaintiff on the allegation in the plaint that a compromise had been duly arrived at between the parties and had been accepted by them. When on the basis of the compromise the plaintiff took the papers for attestation to the Assistant Collector Ist Grade, it was found that there was an error wherein the directions and the dimensions of the suit land had been intermingled. I note at this juncture that prior to the institution of the present suit, application u/s 151, 152 of the CPC (hereinafter referred to as ''CPC'') was instituted by the plaintiff praying for amendment of the decree on the ground that there has been a clerical error which application was dismissed by the trial Court on 29th October, 2004 holding the same being not maintainable as it did not fall within the ambit of the jurisdiction of the Court u/s 152 CPC. Aggrieved by that order, the plaintiff preferred petition u/s 227 of the Constitution of India in this Court being CMPMO No. 2/2005, which was withdrawn. Adverting to the suit out of which the present appeal arises, the learned trial Court on the evidence on record holds that no suit is maintainable. Aggrieved, the plaintiff preferred an appeal which has been allowed by the learned appellate Court.

The defendant now approaches this Court in second appeal challenging the legality of the judgment on a number of grounds. Five substantial questions of law have been framed for consideration of this Court. The record of the Courts below was called for.

What has been urged before me by learned counsel appearing for the appellant is that the suit was not maintainable. The compromise having attained finality, there is no illegality proved on record. The compromise having been accepted, no action/suit is maintainable. Learned counsel for the appellant relied upon the decision of the Supreme Court in Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, holding:-

When the amending Act introduced a proviso along with an explanation to Rule 3 of O. 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or 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. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R. 1(m) of O. 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such 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.I. A of O.43 of the Code.

(p.1143)

Learned counsel also urges that this decision has been reiterated in Pushpa Devi Bhagat (D) th. LR. Smt. Sadhna Rai Vs. Rajinder Singh and Others, holding:-

...The difference between the two parts is this: Where the matter falls under the second part, what is reported is a completed action or settlement out of court putting an end to the dispute, and the resultant decree recording the satisfaction, is not capable of being enforced by levying execution. Where the matter falls under the first part, there is a promise or promises agreed to be performed or executed, and that can be enforced by levying execution. While agreements or compromises falling under the first part, can only be by an instrument or other form of writing signed by the parties, there is no such requirement in regard to settlements or satisfaction falling under the second part....

(p.578)

Lastly, he relies upon the judgment of the Madhya Pradesh High Court in Brajesh Kumar Awasthi and Another Vs. State of M.P. and Others, wherein the Court holds:-

In view of the aforesaid pronouncement of law we are of the considered opinion that the suit instituted by the State of M.P. and its functionary before the learned trial Judge was not maintainable and, therefore, the judgment and decree passed thereon are vulnerable and are bound to be set aside and accordingly we so do. However, following the law laid down in the case of Raghubir Singh (2002) AIHC 742 (Supra) we direct the learned trial Judge to treat the plaint as an application for setting aside the judgment and decree passed in the earlier suit by way of compromise and proceed as per law.

(p.142)

In these circumstances, learned counsel submits that the judgment requires reconsideration. Learned counsel for the respondent has placed reliance on the judgment of the Supreme Court in Sarup Singh and Another Vs. Union of India (UOI) and Another, to urge that the Court upholds that correction as contemplated u/s 152 CPC which goes to the merit of the case is beyond the scope of Section 152 CPC. The respondent-plaintiff approached the learned trial Court u/s 152 CPC which prayer was declined. It is in these circumstances that the suit was preferred. Adverting to the judgment of the learned appellate Court, learned counsel submits that the evidence on record establishes the claim of the plaintiff-respondent which has been adjudicated after detailed consideration of the documents proved on record. The only correction in the compromise was "instead of the words west to north 24 meters, words from east to west measuring 24 meters shall be read. The suit is decreed". I do not find any error of law in the factual context of what has been urged before the Court. On the question of law raised all that I need say is that the plaint, interpretation of documents Ex. PX (PW-2/A) and judgments D-1 and D-2 does not arise in the factual context. Appeal is dismissed. No order as to costs.