Mohamed Athar and Another vs Narsingh Das Jaju and Another

Srinivasachari, J.—This is a revision against the judgment of the Court of Small Causes. The suit was for the recovery of an amount due on a promissory note alleged to have been executed by the Defendant on 29-3-1951. The hearing in the case was fixed for 21-9-1951. Before, however, the date of hearing came an application was filed in the Court purporting to be a compromise petition on behalf of both the parties on 6-9-1951 and the order of the Judge of that day is to the following effect:

The hearing has been advanced. The plaintill in person, Defendant by vakil; a compromise has been filed which has been verified. It is, therefore, ordered that the suit be decreed in pursuance of the compromise.

After this the Petitioner before me who was the Defendant in the case filed an affidavit and an application alleging that no summonses were taken to him in the suit; that he did not employ any vakil on his behalf; that he is no party to the compromise. He therefore sought to set aside the decree that was passed on the basis of the compromise. The lower Court dismissed this application on the ground that the remedy of the party was to file a regular suit and he could not move the Court in these proceedings. The Defendant therefore has come up in revision before me.

The short point to be considered is as to what is the remedy of the Defendant, having regard to the circumstances of this particular case. In all such cases where a compromise is alleged by one party and denied by the other, the procedure has always been to direct the party to file a regular suit, for, the allegation of the party is that the compromise was brought about by practicing fraud upon him. Otherwise the Court has jurisdiction to enquire into the fact as to whether the party did give his consent to the compromise. A distinction should be drawn between a case where the allegation between the parties to an alleged compromise is that he never gave his consent and a case where he alleges that it was obtained by fraud. If there is an apparent consent then the remedy would be only by way of a suit. It, therefore comes to this that where the allegation is that fraud was practiced on the Court, the Court has inherent power to correct its own proceedings. But if the allegation is that fraud was as between the parties, the remedy is only by way of a regular suit. The Privy Council in the case of - ''Unnoda Dabee v. Maria Louisa Stevenson 22 WR 290 (PC) observed:

The compromise may have been proper and if all the facts could be assumed but the vice of the arrangement is that it was made without the party who is principally affected being sufficiently represented.

In such a case the Court has jurisdiction to enquire into the fact as to whether the party gave his consent. The record does not show that the Defendant was served with summons. (SIC) verification on the back of the compromise petition does not show that the Defendant was (SIC)re in person. The fact that no summons (SIC)s taken on to the Defendant, that the hear-of the case was advanced from 21-9-1951 to -1952 and the fact that the Defendant was there in person, all go to show that the (SIC)endant did not give his consent. In support this there is the affidavit of the Defendant (SIC)o. It is just possible that the Plaintiff may able to prove that the Defendant did give consent to this compromise. In my (SIC)inion this is clearly a case which could be (SIC)garded as a case where one of the parties (SIC)ld be said to have practised fraud upon the (SIC)urt. As such the Court would have jurisdiction under its inherent powers to make entry and correct its own proceedings. I, therefore, allow this revision, set aside the (SIC)der of the lower Court and remand the case the Court of Small Causes for enquiring (SIC)o the fact as to whether there was a compromise as alleged and decide the case accord(SIC) to law. If the lower Court comes to the (SIC)ielusion that the Defendant gave his con(SIC)it, then the decree would stand; otherwise a case would have to be heard and judgment enounced: after proper trial. The Petitioner U be entitled to costs of this revision. Advocate''s fee Rs. 25.