Uday Bhan Singh vs Asim Kumar Singh

The petitioners are aggrieved of order dated 02.08.2011 passed in Misc. Case No.13 of 2010 by which their objection on maintainability of the

miscellaneous case has been rejected.Â

Stand taken by the petitioners is that once no objection on the compromise petition filed in Eviction Suit No.21 of 2008 was filed and a compromise

decree was passed, validity of the said decree cannot be decided by instituting a miscellaneous case. In the aforesaid background, the petitioners

have further contended that there was no cause of action for the applicants to move the Court seeking setting-aside of compromise decree dated

13.04.2010.

The petitioner no.1 is the person who was authorized by the plaintiffs in Eviction Suit No.21 of 2008 to institute the suit and petitioner no.2 is the one

who claims himself constituted attorney of the petitioner no.1. After a compromise decree was passed in Eviction Suit No.21 of 2008, the plaintiffs

filed an application on 25.10.2010 for setting-aside the compromise decree dated 13.04.2010. This application was registered as Misc. Case

No.13 of 2010. Stand taken by the applicant- Asim Kumar Singh is that the power of attorney holder-Uday Bhan Singh or his constituted attorney

namely, Sunil Kumar Singh had no authority to file a compromise petition on the basis of which the eviction suit has been decreed. Stand taken by

the present petitioners in the miscellaneous case is that the Khas Mahal lease-holders had left Hazaribagh long back and they had allegedly abandoned

the property by dedicating the entire holding including Nanda Bhawan in favour of the college way back in the year 1979. Â

In the miscellaneous case the petitioners filed an application under section 11 r/w Order-XXIII Rule 3-A CPC and Order-VII Rule 11 CPC r/w

section 151.

Order-VII CPC provides the procedure when a plaint is presented. Rule 1 gives particulars which a plaint shall contain. Though there is

considerable doubt whether the application dated 25.10.2010 which has been registered as Misc. Case No.13 of 2010 can be labelled as a plaint, by no

stretch of imagination it can be said that the applicants have no cause of action for filing an application for setting-aside the compromise decree dated

13.04.2010. There is no application of Section 11 CPC insofar as continuance of Misc. Case No.13 of 2010 is concerned. Order-XXIII Rule 3-A

provides 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. What is not lawful has been indicated in the explanation to Rule 3 of Order XXIII CPC. It says 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. Leaving aside this issue, it

is well-settled that when it is alleged that a compromise decree has been obtained by playing fraud, in the first instance an application shall lie in the

court which has passed the compromise decree.

In the above facts, finding no merit in the challenge to the impugned order dated 02.08.2011, the writ petition is dismissed. Â