Kusumlata vs Yashbir Singh

Umesh Chandra Dhyani, J.—The defendants (revisionists herein) moved an application under Order 7 Rule 11 C.P.C. before the Civil Judge (S.D.), Dehradun, which application was rejected, vide judgment and order dated 12.05.2011. Aggrieved against the same, the civil revision No. 36/2011 was filed before this Court. The said revision was decided on 22.05.2014 by this Court, which is as follows:-

After having had compromised the Suit, one of the parties to the compromise filed a Suit challenging the compromise. That is not permissible under Order 23 Rule 3A of the Code and, accordingly, such Suit is barred by law. Revisionists had applied for taking the plaint filed in the said Suit off the file. That Application has been rejected and hence, this Revision Application. Revision Application is allowed. The plaint filed in the Suit is taken off the file.

Aggrieved against the same, a review application No. 335/2014 is filed on behalf of the respondents No. 1 & 2 for seeking review of the judgment and order dated 22.05.2014 passed by this Court in Civil Revision No. 36/2011, whereby the civil revision was allowed.

Learned counsel for the review-applicants assailed the impugned judgment and order on various grounds, some of which are enumerated hereunder:

(2) That in Suit No. 80/2006 Kusumlata & others vs. Yashveer Singh & others where the compromise dated 4.5.2010 is said to have been arrived at between the parties, the principal plaintiff was Kusumlata who was pursuing the matter through her attorney in favour of Vijan Bir Singh.

(3) That subsequently an amendment was made in the cause title of the suit and by virtue of an amendment dated 4.5.2010 other co-plaintiffs were added namely Vijan Bir Singh the attorney of plaintiff No. 1 Kusumlata and Rajbir Singh plaintiff No. 3.

(4) That in the revision in question which was arising out of an order passed in Suit No. 186/2011 in which the respondent No. 1 & 2 herein were the plaintiffs have challenged the compromise decree on the ground of competence of entering into the compromise by the parties to the Suit No. 80/2006.

(5) That the compromise thus executed on 4.5.2010 (Annexure No. 5 to the revision) has been executed by the plaintiffs and said to have been executed on behalf of the defendants. If it is presumed that the revisionists had a case of a bar created by Order 23 Rule 3-A, challenge to a compromise decree in Suit No. 186/2011 will not come into play for the reasons assigned hereunder besides the reasons given in the impugned order dated 12.05.2011.

(6) That it is not in dispute and particularly at the behest of the revisionist that the compromise dated 04.05.2010 was executed inter se between the plaintiffs and defendants in Suit No. 80/2006. Meaning thereby, if a challenge to the order dated 12.05.2011 impugned in the revision was to be given it should have been given by all the co-plaintiffs in the suit including Rajbir Singh who was impleaded in Suit No. 80/2006 at a subsequent stage has not been challenged the order dated 12.05.2011.

(10) That the compromise itself is void and ab initio and even if a decree is passed on the same cannot be sustained as it does not satisfy the ingredients of Order 23 Rule 3 of the Code of Civil Procedure.

(15) That the Hon''ble Apex Court in Janki Vasudev''s case has held out that the power of attorney holder to act on behalf of the principal will not include the acts which are not contemplated in an instrument, thus, the suit in question i.e. Suit No. 80/2006 could not have been decided on the basis of the compromise.

(19) That on the day when the revision was listed for arguments, the arguing counsel on behalf of respondent No. 1 & 2 was not well and suffering from dehydration, this fact was noticed to the counsel for the revisionists, and the request was made to him for getting another date, yet dehorse to the ethics, the revision was pressed in the presence of junior colleague who was unable to assist the court in the manner it should have been done.

(20) That the order sought to be reviewed i.e. 22.5.2014 do not assign any reason whatsoever for allowing the revision and reversing the order dated 12.5.2011, hence, the order sought to be reviewed has been passed without considering the rival claims of the parties inter se on their rights against the order dated 12.5.2011.

Learned counsel for the review-applicants placed reliance upon the judgments of Hon''ble Supreme Court in Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., , The Oriental Insurance Co. Ltd. and Another Vs. Gokulprasad Maniklal Agarwal and Another, , Ram Lakhan Vs. Presiding Officer and Others, , Green View Tea and Industries Vs. Collector, Golaghat, Assam and Another, and the judgment of Calcutta High Court in Soumitra Panda Vs. A.K. Agarwal and others, , emphasizing that the order dated 22.05.2014 passed by this Court should be reviewed on account of the mistake or error apparent on the face of the record, or for other sufficient reasons which were assigned by learned counsel for the review-applicants in the grounds of review.

A suit was disposed of in terms of compromise arrived at between the parties. Both the parties appeared before the Court and their statements were recorded. A decree was drawn up on the basis of said compromise Order 23 Rule 3A C.P.C. 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. If the judgment dated 22.05.2014 is viewed from this angle, there appears to be no scope for reviewing the same.

There is no dispute about the proposition of law put forward by learned counsel for the review-applicants before this Court. The only question, which arises for consideration of this Court is-whether such infirmities, if any, attract Order 47 of the Code or not? Whether the order so passed by this Court on 22.05.2014 was on account of some mistake or error apparent on the face of record? Whether the same is to be reviewed for any other sufficient reasons? The reply to the said questions, in the estimation of this Court, is in the ''negative''. In other words, the same do not fall within the purview of Order 47 of the Code.

By filing such review application, the review-applicants seek to re-argue the civil revision, which is not permissible in law. The review application, therefore, fails and is dismissed.