Kalipada Deka and Another vs Danpati Deka

I.A. Ansari, J.—This revision has arisen out of the order, dated 26-2-97, passed by the learned Munsiff No. 1, Nalbari, in Misc. (J) Case No. 34/95, arising out of TS No. 21/91 .

The case of the petitioners may, in brief, be stated as follows : The petitioners and the opposite party are brothers. The opposite party instituted the TS No. 21/91 aforementioned in the Court of the learned Munsif No. 1, Nalbari, seeking declaration of his exclusive title over the land described in the three schedules to the plaint and seeking khas possession, thereof by evicting the petitioners. The petitioners contested the suit as defendants. When the suit was pending, a sitting for settlement of the dispute between the parties was held, on 11-12-94, at the house of one Dona Ram Deka and the same was attended to by not only the parties to the said suit, but also by their co-villagers. The dispute was amicably resolved and the terms and conditions of the compromise/settlement so readied, were reduced into writing and the parties to the suit as well as the witnesses concerned put their signatures thereon. This deed of compromise was handed over to the plaintiff by the opposite party for doing the needful on 12-12-94, i.e. the date on which the suit was fixed. On 12-12-94. since learned Munsiff was absent, the deed of compromise could not be filed in the Court and the opposite party asked the petitioners to come to the Court on 14-12-94. When the petitioners reached the Court on 14-12-94, the opposite party handed over to them a compromise petition asking them to put their signatures thereon and the opposite party also told the petitioners that the said compromise petition had been written in accordance with the terms and conditions reached at the said sitting, the opposite party also told the petitioners that since the Presiding Officer would be leaving the Court room, the said compromise petition should be filed Immediately. The petitioners, therefore, put their signatures on the said compromise petition hurriedly without going through the contents thereof and as the opposite party is elder brother of the petitioners, the petitioners had no reasons to doubt the bona fide or the truth of what the opposite party had told them. The lawyers of both the parties also put their signatures on the said compromise petition. The said compromise petition was, submitted in the Court and a compromise decree accordingly followed. Later on, the petitioners came to know that the said compromise petition had not been written in accordance with the terms and conditions of the settlement, which had actually been reached by the parties. Having come to learn the same, the petitioners instituted TS No. 9/95 In the Court of the learned Munsiff No. 1, Nalbari, for setting aside the compromise decree, dated 14-12-94 aforementioned. By order, dated 4-7-95 the learned Munsiff dismissed the suit on the ground that the same was barred by provisions of Rule 3A of Order 23 of CPC. The petitioners, then filed a petition under the provisions of Rule 3 of Order 23 read with Section 151 of CPC before the learned Munsiff on 1-8-95 praying for setting aside the compromise decree, dated 14-12-94, aforementioned. This petition gave rise to Misc. (J) Case No. 24/95. During the course of the hearing the petitioners examined as many as 5 witnesses. Opposite party also adduced evidence by examining himself as a witness. Upon hearing the learned counsel for the parties, learned Munsiff passed the impugned order, dated 26-2-97, rejecting the petition and dismissing Misc. (J) Case No. 24/95. Aggrieved by this order, the petitioners have, now. approached this Court.

I have carefully perused the materials on record and I have heard Mr. B. K. Goswami, learned Senior counsel for petitioners. None has appeared on behalf of opposite party.

Before entering into the merit of the impugned order, it is pertinent to mention that the petitioners, as already indicated above, instituted TS 9/95 praying for setting aside the compromise decree, dated 14-12-94, aforementioned, but this suit was dismissed by order, dated 4-7-95, on the ground that the suit was barred by Rule 3A of Order 23, CPC. This order has attained finality. This position is not disputed by Mr. Goswami.

In the above backdrop, if the provisions of Rule 3 of Order 23, CPC are carefully read, it becomes clear that Rule 3 relates to passing of compromise decree in the suit and the proviso to Rule 3 lays down that if any of the parties to the suit, which is sought to be compromised, denies that he compromise has been reached, the Court shall decide the question. Rule 3 also lays down when and how a suit can be compromised and how a compromise decree can be passed. Rule 3 does not give any power to the Court to set aside compromise decrees. Viewed from this angle, learned Munsiff had really no jurisdiction to set aside the compromise decree dated 14-12-94, aforementioned and/or re-open the TS 9/95 aforementioned in exercise of his powers under Order 23, Rule 3. In a situation, such as this, question of taking resort to Section 151 of CPC overriding the provisions of Order 23, Rule 3 does not arise at all. Strictly speaking, therefore, the application made in this case by the petitioners for setting aside the said compromise decree under the provisions of Rule 3 of Order 23 read with Section 151, CPC was not maintain-able at all.

Coupled with the above, it is essential to note that the entire grievance of the petitioners is that the compromise petition was prepared by the opposite party not in accordance with the terms and conditions of the settlement, which had been reached by the parties, and that their signatures as well as the signature of their advocates had been fraudulently obtained without letting them to know that the said compromise petition had actually not been prepared in accordance with the terms and conditions, which had been reached by the parties, rather, the opposite party had told the petitioners that the said compromise petition had been prepared in accordance with the terms and conditions of the compromise reached between the parties.

Thus, the petitioners expressed their ignorance about the contents of the said compromise petition and alleged that the petition was not in terms of the terms and conditions of the compromise reached between the parties. However, when the petitioner No. 1 was cross-examined, he deposed, in no uncertain words, that opposite party''s advocate had read over the compromise petition to them (i.e. petitioners) and that after the same was read over, they (i.e. petitioners) put their signatures on the said petition and, then, they took the petition to their counsel for taking his signature.

It is, thus, clear that according to the petitioner No. 1 himself, both the petitioners knew the contents of the compromise petition, but they had not raised any objection thereto. In the face of such admitted facts, learned Munsiff was justified in coming to the conclusion that the petitioners had not been able to make out any case for interference with the compromise decree, dated 14-12-94, aforementioned. In the face of the materials on record, I see no reason to take a view different from what the learned Munsiff has taken.

Situated, thus, I see no merit in this revision petition and the same is accordingly dismissed. The parties are, however, left to bear their own costs.

Let the LCR be sent back with a copy of this judgment and Order.