Kishun
@ Ram Kishun Vs. Bihari (D) by LRS [2005] Insc 392 (5 August 2005)
Cji
R.C. Lahoti, C.K. Thakker & P.K. Balasubramanyan
(ARISING
OUT OF .S.L.P) NOS.3588-3589 OF 2004) P.K. BALASUBRAMANYAN, J.
Leave
granted.
1. One
Ram Charan had two sons, Ram Kishun called Kishun and Ram Prasad called Behari.
On 22.09.1966, Ram Charan gifted a piece of agricultural land to his son Kishun
by way of a deed of gift. Thereupon, Behari filed a suit for cancellation of
that gift impleading Kishun as defendant No.1 and his father Ram Charan, as
defendant No.2. He contended that the property was joint family property and
hence could not be gifted by the father Ram Charan and that in any event the
deed of gift was got executed by Kishun, by practicing fraud. Kishun and Ram Charan
filed written statement denying the claim of Behari.
2.
Pursuant to the deed of gift in his favour, Kishun had approached the Tehsildar
for effecting mutation. It is claimed by Behari that before the Tehsildar, a
compromise was entered into and an application for recording the compromise was
moved. Under the compromise, according to Behari, the parties agreed that the
property would be taken half and half by the two brothers. Since this
compromise set up by Behari was not accepted by Kishun and Ram Charan, the Tehsildar
did not pass any final order either in respect of the compromise or in respect
of the dispute.
3. In
the suit, Behari filed an application under Order XXIII Rule 3 of the Code of
Civil Procedure (for short "the Code") asserting that there was a
compromise of the dispute between the parties and that the same may be accepted
and the seal of approval affixed thereon by the court. Along with the
application, he produced the alleged joint statement said to have been signed
by all the parties and filed before the Tehsildar. Kishun and Ram Charan filed
objections to the application denying that there was a compromise or an
adjustment of the dispute. Since the compromise was not by way of an
application in the suit itself satisfying the requirements of Order XXIII Rule
3 of the Code and since one of the parties had alleged that there was a
compromise of the dispute and the other party had denied the same, an enquiry
was made by the court on the existence and acceptability of the adjustment of the
dispute pleaded. Thereafter, the trial court held that there was no valid
compromise or adjustment of the dispute between the parties. Hence, it rejected
the application filed by Behari under Order XXIII Rule 3 of the Code.
4. An
appeal against the order rejecting the application under Order XXIII Rule 3 of
the Code was filed by Behari before the First Appellate Court. Such an appeal
was provided by Order XLIII Rule 1(m) of the Code as it stood before the
amendment, by Act 104 of 1976, dropping clause (m). The Appellate Court, set
aside the order of the trial court and directed, that the trial court should
proceed with the matter in terms of the compromise petition moved before the Tehsildar
and relied on by Behari in the suit. This decision was challenged by Kishun in
a revision. While this revision was pending, the trial court passed an order on
05.10.1976 implementing the direction of the appellate court and decreeing the
suit in terms of the compromise petition said to have been filed before the Tehsildar.
The revision, when it came up for hearing, was disposed of as infructuous, in
view of the fact that the suit had been decided afresh by the trial court,
pursuant to the order of the appellate court. Kishun challenged the decree in
the suit based on the alleged compromise, by way of an appeal before the court
of the Additional District Judge. The Additional District Judge held that it
was not proved that there was a lawful compromise of the dispute. He took the
view that the remedy open to Behari was to approach the revenue court and get
his title and interest in the agricultural land declared. Thus, the compromise
decree passed by the trial court was effectively set aside. Behari filed a
second appeal before the High Court of Allhabad some times in October 1989,
challenging the decision of the Additional District Judge. While the second
appeal was pending, Kishun, the first defendant in the suit and the respondent
in the second appeal, died in the year 1990. Behari, the appellant, died in the
year 1993. No steps were taken to bring on record the legal representatives of
either the deceased appellant or the deceased respondent. The second appeal in
fact abated.
But it
is seen that on 24.11.1999, the High Court of Allahabad after hearing counsel
for the appellant (appellant Behari had died six years before), proceeded to
allow the second appeal on the ground that the appeal against the compromise
decree filed by Kishun before the Additional District Judge, was not
maintainable in view of Section 96(3) of the Code which provides that no appeal
shall lie from a decree passed by the court with the consent of parties. The
High Court, therefore, held that the First Appellate Court had no jurisdiction
to entertain the appeal and to allow the same. There was no consideration of
the merits. This decision rendered in second appeal by the High Court of Allahabad
is challenged in this appeal, by the legal representatives of Kishun. The son
of Behari is impleaded as the respondent.
5. As
rightly pointed out by learned counsel for the appellants and fairly agreed to
by learned senior counsel for the respondent, the decree passed by the High
Court in favour of a party who was dead and against a party who was dead, is
obviously a nullity. It is conceded that the legal representatives of neither
of the parties were brought on record in the second appeal and the second
appeal stood abated. On this short ground this appeal is liable to be allowed
and the decision of the High Court set aside.
6.
That apart, we are of the view that the High Court was in error in holding that
the appeal filed by Kishun against the decree of the trial court accepting a
compromise which was disputed by him, was not maintainable.
When
on a dispute in that behalf being raised, an enquiry is made (now it has to be
done in view of the proviso to Order XXIII Rule 3 of the Code added by Act 104
of 1976) and the suit is decreed on the basis of a compromise based on that
enquiry, it could not be held to be a decree passed on consent within the
meaning of Section 96(3) of the Code. Section 96(3) contemplates non-appellability
of a decree passed by the court with the consent of parties. Obviously, when
one of the parties sets up a compromise and the other disputes it and the court
is forced to adjudicate on whether there was a compromise or not and to pass a
decree, it could not be understood as a decree passed by the court with the
consent of parties. As we have noticed earlier, no appeal is provided after
1.2.1977, against an order rejecting or accepting a compromise after an enquiry
under the proviso to Order XXIII Rule 3, either by Section 104 or by Order
XLIII Rule 1 of the Code. Only when the acceptance of the compromise receives
the imprimatur of the court and it becomes a decree, or the court proceeds to
pass a decree on merits rejecting the compromise set up, it becomes appealable,
unless of course, the appeal is barred by Section 96(3) of the Code. We have
already indicated that when there is a contest on the question whether there
was a compromise or not, a decree accepting the compromise on resolution of
that controversy, cannot be said to be a decree passed with the consent of the
parties. Therefore, the bar under Section 96(3) of the Code could not have
application. An appeal and a second appeal with its limitations would be
available to the party feeling aggrieved by the decree based on such a disputed
compromise or on a rejection of the compromise set up.
7. We
think that in this case, a proper enquiry as to whether there was a compromise
or an adjustment of the dispute, in terms of the proviso to Order XXIII Rule 3
of the Code is warranted. The decision in the Second Appeal is also a nullity
since it was passed in favour of a deceased appellant against a deceased
respondent.
8. In
this situation, we think that interests of justice would be sub- served if the
orders and decrees passed in the suit, in the appeals and in the second appeal,
are set aside and the suit remanded to the trial court for making a proper
enquiry into the question whether there was a compromise of the disputes
between Behari on the one hand and Kishun and Ram Charan on the other and to
record a finding thereon in terms of the proviso to Order XXIII Rule 3 of the
Code. Now that the legal representatives are before us, the trial court will
direct the formal correction of the cause title in the plaint, giving an
opportunity to the supplemental plaintiff to bring on record other legal
representatives of the parties to the suit, if any. The trial court will
thereafter proceed to decide the question of the existence or otherwise of a
compromise or an adjustment of the dispute. If it comes to the conclusion that
there was a compromise of the dispute, it will consider whether the compromise
is lawful and could be accepted by the court. In case it is found to be lawful,
a decree would be passed in terms of the compromise.
But if
it is found that no compromise, as asserted has been proved, or an adjustment
of the dispute is proved, the trial court will proceed to decide the suit on
merits after giving the parties before it, the necessary opportunity to
establish their respective cases. If sought for by the parties, the trial court
will permit the parties to amend their respective pleadings. Considering that
the suit is by now a vintage one, the trial court will expedite the fresh trial
and disposal of the suit.
9. In
the result, we allow these appeals, and setting aside the decision of the High
Court and all the decisions and orders of all the courts below thus far
rendered in this suit, remand the suit to the trial court for a fresh decision
as indicated in the previous paragraph and for a final disposal of the suit as
indicated therein. The parties will appear before the trial court on
26.09.2005.
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