Samant Singh vs Sahdu Khan

S.K. Dubey, J.

This is an appeal by the Plaintiffs/Appellants, Agrieved of the order of remand, passed, in Civil Appeal No. 26/1988, by First Additional Judge to the Court of District Judge, Morena, whereby the judgment and decree dated 1-2-1984, based on a compromise passed in Civil Suit No. 359-A/1982 by Civil Judge, Class 11, Sabalgarh was set aside.

Brief facts leading to this appeal are thus. The Plaintiffs instituted a suit on 1-12-1982 against the Respondent for declaration and permanent injunction in relation to the land bearing survey No. 264, area 3 Bigha 3 Biswa, situated in village Mangrol, Tahsil Sabalgarh, District Morena. The Defendant was noticed for 21-12-1982, but as the Defendant was not served, the case was adjorined to 13-1-1983. But, on 21-12-1982 the Defendant''s son Asgar through his counsel filed an application under 0.1 R. 10 (2) C. P. C., for impleading him as a party to the suit. This application was fixed for hearing on 13-1-1983. In the meantime, on 1-1-1983 the Plaintiffs moved an application for accelerating the date of hearing. The Defendant through his counsel, Uma Kant Sharma, also filed written statement admitting the claim of the Plaintiffs. The statement of Defendant was recorded and the case was fixed for 13-1-1983, on which date the Plaintiffs filed reply to the application under 0.1 R. 10 (2). The Defendant''s son Asgar filed another application u/s 151, C. P. C. stating therein that a fraud has been played upon the Defendant and on the Court as no written statement was filed by the Defendant admitting the claim of the Plaintiffs nor his statement was recorded: some other person in place of the Defendant appeard through the Defendant''s counsel claiming himself to be the Defendant; the proceedings of 1-1-1983 are null and void and are liable to be quashed. The application under 0.1 Ru. 10 (2) was heard and the hearing on the application u/s 151 was postponed to 27-1-1983. The Plaintiffs filed reply to this application and the parties were heard. On 9-3-1983 the trial Court dismissed the application u/s 151 holding that the Defendant''s son is not a party to the suit and, hence, cannot challenge the proceedings dated 1-1-1983. On this date an application dated 22-12-1982 for compromise was also filed which does not bear endorsment and signature of the presiding officer. On enquiry, the Defendant denied his signatures on the compromise application. The trial Court after considering the statement of the Defendant and the objection raised in relation to the proceedings dated 1-1-1983, rejected the compromise application and also the written statement admitting the claim of the Plaintiffs and directed the Defendant to file written statement on 7-4-1983, On 2-4-1983 the Plaintiffs moved an application u/s 151, C. P. C. for setting aside the order dated 9-3-1983. Another application was filed by them for early hearing of the application so moved. On 9-4-1983 Defendant filed reply to the two applications of the Plaintiffs. After hearing parties, the trial Court allowed the application u/s 151, set aside the order dated 9-3-1983 and fixed the case for 2-7-1983 for hearing and disposing of the application for compromise and passing proper orders on the first written statement. The trial Court after recording of evidence and hearing the parties passed the judgment and decree dated 1-2-1984, holding that the admission of Plaintiffs'' claim in the first written statement and the compromise were voluntary without any undue influence or coeretion.

Against this judgment and decree, the Defendant Sahdu Khan preferred an appeal. The lower appellate Court after examining the record in the backdrop of the facts staled above and hearing parties, set aside the judgment and decree and remitted the case to the trial Court with the direction that the Defendant be afforded an opportunity to file his written statement, issues of fact and law, which may arise from the pleadings of the parties, be framed and then the suit be tried and disposed of on merits in accordance with law. Against this order of remand the Plaintiffs have preferred this appeal under 8.43 R. 1 (u), C, P. C.

Shri R. D. Jain learned Counsel for the Appellants, contended that the lower appellate Court acted illegally and without jurisdiction in entertaining the appeal, as the judgment and decree passed by the trial Court was with the consent of parties: from such a decree no appeal lies in view of Section 96 (3), C. P. C., Shri Jain also contended that the trial Court was right in recalling its order dated 1-1-1983, as it was based on a mistake of the Court, and the court is competent to correct its mistakes u/s 151 the trial Court did not hold any enquiry on the application for compromise; therefore also, the order was rightly recalled, and it was not necessary for the Plaintiffs either to file an appeal or a review and, in any case, the application was in the nature of a review; non-mentioning in the application of the provisions of review does not make any difference. In support of his submissions, Shri Jain placed reliance on Mulbai v. Murti Paghunathil AIR 1967 SC 1368; Chandrashekhar Jaikishan Bajpai Vs. Niyamatram, , Chhitu Vs. Mathuralal and Others, Pannalal v. Kishanlal AIR 1952 Nag. 34, and Narendra Kumar v. M/s Vimal Kumar & Co. 1974 MPIJ N 74.

After hearing Shri Jain for Appellants and Shri K. K. Lahoti for the Respondent, I am of the opinion that this appeal has no merit.

The contention of Shri Jain that the deecree was a consent decree, based on a compromise; hence the lower appellate Court errod in not holding the appeal an incompetent in view of S. 96 (3). C. P. C. has no merit. In the background of the facts and the relevant dates stated in factual paras of the judgment, it is abundantly clear that there was no consent of the Defendant. The trial court passed its order dated 9-3-1983 rightly, but, unfortunately, entertained the application of the Plaintiffs u/s 151 and thereafter held an enquiry and reviewed its earliar order. Reviewing of the earlier order by the trial court was not permissible on an application u/s 151. There is a specific provision for review in the Code of CPC which is provided in Section 114 and 0.47 R. I. Admittedly, the trial court exercised powers u/s 151 and not under 0 47. It is trite law that inharent jurisdiction of the court must be exercised subject to the rule that if the Code does contain a specific provision which would meet the necensities of the case, much provision should be followed and inharent jurisdiction should not be invoked. In other words, the court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further, the power u/s 151 of the Code cannot be exercised as an appellate power. (See Nain Singh Vs. Koonwarjee and Others, It is not disputed that against on order rejecting a compromise application or granting a decree in terms of the compromise, the remedy either of review or of appeal is available. In the circumstances, recalling of the earlior order dated 9-3-1983 with the aid of Section 151 was wholly illegal and without jurisdiction and in my opinion the lower appellate Court was right in holding so

To say that the trial Court exercising the powers u/s 151, C. P. C., corrected its mistake and rightly recalled its earlier order, as before the passing of that order, no enquiry was held on the application for compromise under 0.23 R-3, C. P. C., is not correct. The Plaintiff, if wanted to receall the earlier order, ought to have applied for review or would have filed an appeal.

The contention of Shri Jain that the appeal before the lower appellate Court was not entertainable in view of the bar contained in S. 96 (3) of the Code can also not be accepted for the reason that an appeal lies u/s 96 read with 0.43 R. 1-A against on order recording of a compromise by the trial Court, provided the compromise is not lawful. In such a case, a revision does not lie against the order recording the compromise and passing a decree in tens thereof. This aspect has been considered in details by a division Bench of this Court in Thakur Prasad Vs. Bhagwandas, wherein C. P. Jain and Gulab Gupta, J.I., gave their seperate reasonings for holding so. In the case in hand the alleged compromise was resiled, and the application under 0.1 R. 10 (2) of the Defendant''s son was pending. Because of the compromise the rights of the Defendant''s son were likely to be affected the bar operates only against a decree passed with the consent of the parties. The facts of the case clearly show that before recording of compromise, there was no consent of the Defendant, rather there was a serious dispute between the parties about the compromise; despite all this the decree was passed in terms or the compromise. By no stretch of imagination, in the facts of this case, the decree can said to be a consent decree. The bar to an appeal against a consent decree is based on the broad principle of estoppel. It presupposes that the parties on an action can, expressly or by implication waive or forgo their right of appeal by any lawful agreement or compromise or even by conduct. (See Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others,

Order 23 R, 3 provides that even if there is a consent of patties, it has to be proved to the satisfaction of the court that a suit has been adjusted wholly or in part by and lawful agreement or compromise in writing and signed by the parlies, or where the Defendant satisfied the Plaintiff in respect of the whole or any part of the subject-matter of the Court shall order such Agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith. The Explanation to this Rule makes it clear that an agreement or compromise which is void or voidable under the Indian Contract act, 1872, shall not be deemed to be lawful within the meaning of this rule. There were serious allegations of fraud and coercion and even of impersenation; therefore, the trial Court by its earlier order rightly rejected the application for compromise. But, thereafter, surprisingly, the trial Court dealt with the application u/s 151 and passed the decree rejecting the objection of the son of the Defendant on the ground that he is not a party to the suit. In doing so, the trial Court did not consider whether by such decree the Defendant''s son''s rights are likely to be affected or not. In case of Narendra Kumar (supra) it has been held that the court is bound to enquire about the lawfulness of the compromise even at the instance of the parties to the suit, who are not party to the compromise; a person, though not a party to such compromise, can raise question about the legality of it It is true that in that case it has been held that the questions of fraud etc., played upon a party to the compromise cannot be raised by a stranger who is not a party to suit, it has also been held therein that if the compromising parties play fraud, the Court will certainly enquire about its lawfulness. Though the Defendant''s son was not a party, his application under Order 1 R. 10 (2) was pending, which ought to have been decided, and till then recording of compromise after satisfying its lawfulness ought to have been postponed, which is the view taken by this Court in the order passed in S. A. No. 120/1986 (Baijanti v. Prago) on 22-3-1990 following the decision of this Court in AIR 1944 137 (Nagpur) and those of Calcutta and Madras High Court in Surendra Narain Deo Vs. Nityendra Narain and Others, Ridav Ali v. Benodini Dutt AIR 1919 Cal. 323 and Nanjammal v. Eswaramurthi. AIR 954 Mad. 52. Therefore, the contention that the appeal was entertainable, cannot be accepted.

Besides, competancy of the appeal was not challenged by the Plaintiffs before the lower appellate Court, which is evident from the impugned judgment. It has not been averred on affidavit that the grounds is respect of maintainability of the appeal were raised but were not decided. On the other hand, the Appellants submitted to the jurisdiction and took part in the bearing of the appeal. It is well settled that such a conduct of the Appellants disentitles them to any relief, as, in my opinion, there was no inherent lack of jurisdiction in the lower appellate Court to entertain the appeal. Even if it is assumed for argument''s sake that the lower appellate Court was having no jurisdiction the order of remand passed by it does not cause any injustice to either party, as the Plaintiffs would have full opportunity to prove their case on merits. But, if the order of the lower appellate Court is set aside it would perpetrate an illegal decree passed by the trial Court. Reliance of Shri Lahoti on a recent decision of the apex Court in Mohammad Swalleh and Others Vs. Third Addl. District Judge, Meerut and Another, is well merited, wherein a similar contention was raised before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted the contention but held that the order of the prescribed Authority was invalid and was rightly set aside by the District Judge in the facts of that case, and on that ground the High Court declined to interfere with the order of the learned District Judge. The apex Court held that it is true that there has been some technical branch because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the order of the Prescribed Authority could not be set aside. The High Court while exercising its jurisdiction under Article 226 came to the conclusion that the order of the Prescribed Authority was invalid and improper and the High Court itself could have set it aside, and accordingly set aside. Therefore, in the facts and circumstances of the case, justice has been done, though, technically, the Appellant, even on assumption had a point that the order of the lower appellate Court was illegal. A Division Bench of this Court in case of Bapusingh v. State of M. P. 1989 MPLJ 323, while hearing a petition under Art 226 of the Constitution has held that even if it is found that the Director was having no jurisdiction to entertain the complaint, the High Court will not interfere in its extra-ordinary jurisdiction under Article 226 to quash the order of the Director, as there was no failure of justice in the case.

From the aforesaid discussion, I am of the clear opinion that the appeal before the lower appellate Court was clearly entertainable, wherein the lower appellate Court rightly set aside the judgment and decree of the trial Court, and remanded the case.

In the result, the appeal has no merit and is dismissed with costs. Counsel''s fee Rs. 250/- if pro-certified.