SRIPAT Vs. VISHWANATH

JUDGEMENT

(1.) THIS is a defendant's appli cation for revision of the order passed in Civil Misc. Appeal No. 4 of 197"l by the District Judge, Hamirpur. The facts giving rise to this revision may be briefly stated as follows:-

(2.) THE plaintiffs opposite parties had filed a suit purporting to be under Sec. 77 of the Registration Act for a direction to the Sub-Registrar, Tehsil Charkhari, Hamir pur. to register a sale deed executed on 7-8- 1967 by Sripat, son of Ram Nath for a consideration of Rs. 2500.00 On 28th August, 1969, a compromise petition was filed being paper No. 25-ka-of the suit. It appears that this petition was filed by Sripat and Ayodhya Prasad who were duly identified by their counsel. It was also signed by the counsel for Viswanath, the plaintiff No. 1. On that date the Court did not pass any order on that application on the ground that there was no proper claim before it and it appear ed that there was some deficiency in Court-fees as well. On 6th September, 1969, the Court on the move made by the counsel for the plaintiff allowed the plaintiff to amend the plaint and pay the Court-fees. The plaintiff consequently moved an applica tion for the amendment of the plaint. That application was, however, not opposed and was therefore allowed. The plaint was ac cordingly amended and the defendant was granted time to file additional written statement. Subsequently by an order dated 13th January, 1970, the Court fixed 7th February, 1970 for verification of the compromise. On 27th January, 1970, the defendant filed an application stating inter alia, that he had not entered into any compromise and the alleged compromise dated 28th August, 1969 was obtained by practicing fraud on him and he was not prepared to verify the same. This application was ordered to be put up on 7th February, 1970 and the parties were directed to be ready with their evidence. On 7-2-1970, the statement of Sripat was record ed by the Court and he stated that paper No. 25-ka bore his signature but asserted that the plaintiffs had obtained his signature on that document representing that they were seeking adjournment of the case. The compromise petition as well as the objections were thereupon listed for hearing for 31st March, 1970, but the same could not be taken up on that date as the witnesses had not been served. Ultimately 3rd October, 1970 was fixed for the matter regarding re cording of the compromise. The order sheet of the Trial Court disclosed that on 3rd October, 1970, the parties did not adduce any evidence. The arguments were heard and the order recording the compromise was passed. A decree in terms of the compro mise was also passed by the trial Court. Aggrieved, the defendant preferred a mis cellaneous appeal which was dismissed. The defendant has now come up to this Court.

(3.) ON the other hand he had speci fically denied the contents thereof in his objection, 35-ga. In these circumstances the mere admission of signature on the docu ment in question could not be treated as an admission of the contents thereof. As the defendant had denied to have entered into the compromise, the Court below had to give a finding as to whether there had or had not been a compromise between the parties and then also to decide if the com promise was lawful. It is only after the Court is satisfied that there had in fact been a compromise and further that the compro mise was a lawful one there would be no option left to the Court but to record it and pass a decree in terms thereof. But, whenever there is a dispute between the parties whether the compromise had really been arrived at or not, the Court must be fore proceeding to record the agreement or pass a decree in accordance therewith re quire to be satisfied that the compromise pleaded by any party had in fact been made. In the present case the trial Court instead of recording a clear finding as to whether at compromise had been made or not and if made was it a lawful one observed that the signature of the parties being admittedly on 25-ka-l, inference of the formal execution for the compromise should be made and therefore proceeded to record the compro mise. The Courts below have thus not gone into the merits of the allegations, hence the only course open to me is to set aside the impugned order and send back the case for retrial.