Syed Shah Muhammad Idris, Haidri Sajjadanashin vs Sheikh Muhammad Habibur Rahman and Others

Rowland, J.—The litigation out of which, this appeal arises was of a peculiar nature and has an unusual history. The respondents before us were plaintiffs in title Suit No. 2 of 1935 which was a suit brought under the provisions of Section 92, Civil P.C., in the Court of the District Judge of Monghyr. By consent of parties the dispute between them was referred to arbitration and an award was after some time filed. It was found that the award dealt with certain other matters beyond those which were within the scope of the suit and the subject of the arbitration. When the Judge was disposed to remit the matter to the arbitrator for the purpose of modifying his award then a new suggestion was made that a compromise embodying substantially the result of the arbitration should be filed and a decree be passed in accordance with the compromise. A compromise petition was accordingly filed on 11th September 1937 and a decree was prepared on 1st October 1937. Thereafter the respondents brought in the Court of the District Judge on 25th February 1938, a declaratory suit asking for a declaration that the terms of the decree and of the compromise petition then found on the record of the District Judge''s title suit did not represent the true agreement between the parties, that a draft compromise petition had been prepared embodying different terms and a petition has been signed and presented to the Court accordingly, but that the petition had been tampered with in the interests of the defendants by substituting different pages of type-written matter for the pages in which some of the terms had been embodied. The District Judge, on 6th February 1939, after framing issues transferred the suit to the Court of the Munsif for trial. The suit, I may say, was valued at Rs. 2000 and the Munsif had special powers enabling him to try a suit of that value. On 20th March 1939, the plaintiffs moved the Munsif to permit an amendment to the plaint adding a prayer that the original petition which was marked X for identification be substituted for the alleged false petition in the record of the District Judge and a fresh decree prepared accordingly. The amendment was opposed by the opposite party but was allowed by the Munsif and the suit went to trial. It has been found by the Courts of fact concurrently that the agreement arrived at between the parties was not the agreement embodied in the compromise petition found in the record of the District Judge but that the terms were other wise and were as recorded in the original draft which was marked X.

In second appeal it is said that the decree of the Courts below cannot stand. It is said that the Munsif had no jurisdiction to try the suit or to give the relief which he has given. Two grounds are put forward for this: one is that the value of the suit was beyond the pecuniary jurisdiction of the Munsif; another is that the subject-matter of the claim was not within the Munsif''s jurisdiction. As to the first point the reason put forward is that the alleged trust property in suit is of value over one lac of rupees and it is suggested that the suit should have been valued in accordance with the value of the properties with which it was concerned. The suit, however, was not a suit for possession of immovable properties and the suit was to be valued according to the value of the relief. The plaintiffs sued as members of the public and with a view to asserting certain rights of the public which were not rights of ownership. Those rights might be difficult to value accurately, but the Courts below have held that the valuation placed by the Munsif on the suit was not unreasonable and in second appeal a contention that the suit should have been differently valued cannot be given effect to. The other contention requires more serious consideration. The suit in the form in which it was originally filed before the District Judge was cognizable by the ordinary Courts. It sought a declaration that the proceedings by which the decree was obtained had been fraudulent and that the decree was vitiated thereby. In fact para. 24 of the plaint runs thus:

The plaintiffs respectfully submit that the compromise petition having been tampered with, the consent decree is a nullity and the suit has not ended,

and the prayer was for an adjudication to this effect. The defendants objected that the suit for a declaration only was not maintainable unless the plaintiffs added a prayer for the appropriate consequential relief and paid court-fee on that relief. The plaintiffs then added the prayer that the Court might declare that the decree in the former suit should be treated in the terms of the document marked X and that the contents of the document marked X may be incorporated in the decree which was to be prepared by the trial Court. It is rightly pointed out here that the Munsif had not jurisdiction to make a new decree in the Section 92 suit that being a matter within the exclusive jurisdiction of the District Judge. For this reason the final order of the Munsif cannot stand in so far as it directs the compromise petition on the record to be reinstated in the form of the copy of the compromise petition which is on the record and which forms a part of the plaint and directs a decree in terms thereof to be drawn up in the place of the decree prepared on the basis of the compromise petition tampered with. All that the Munsif had power to do was to declare that the facts were what he found them to be-and that in consequence the decree of the District Judge must be and should stand as vacated. It would then be for the parties to go to the District Judge, ask him to revive title suit No. 2 of 1935 and dispose of it according to law after giving the parties a hearing. This procedure would be in accordance with the Full Bench decision in (Rani) Parygag Kumar Devi and Another Vs. Bhudhar Mal Chaudhury, and the District Judge would then consider whether the compromise petition marked X should be given effect to by him as a lawful compromise within the terms of Order 23, Rule 3. The appellant contends in a suit of a representative nature affecting a public trust a compromise of this kind ought not to be entered into without the leave of the Court. The analogy of suits instituted by guardians on behalf of minors is referred to and it is shown that in suits of that nature leave has to be formally given to compromise before any compromise can be arrived at which is binding on the minor: Manohar Lal v. Jadul Nath Singh (''06) 28 All. 585. It is suggested that the same principle applies to all representative suits, but direct authority for this has not been placed before us. We were referred to Abdur Rahim v. Abumahomed Barkat Ali AIR 1928 P.C. 16 as a case in which the question was raised whether in India persons instituting a suit on behalf of the public can bind the public by a compromise decree.

The question whether the compromise was a lawful compromise is not directly before us for determination in this appeal: parties will have the opportunity of making their submissions to the District Judge. The result will be that the decree of the Courts below will be modified, the plaintiffs will obtain the declarations given them by the Munsif but not an order for drawing up any fresh decree in place of the decree prepared on the basis of the compromise petition tampered with. Subject to this modification the decision of the Courts below will be affirmed and the parties will bear their own costs of this second appeal.

Manohar Lall, J.

I agree.