SAMANT SINGH Vs. SAHDU KHAN

JUDGEMENT

(1.) THIS is an appeal by the Plaintiffs/Appellants, Aggrieved 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 adjoined 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 under Section 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 appeared 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 under Section 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 under Section 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 endorsement 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 under Section 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 under Section 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 coercion. 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.

(2.) 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 under Section 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 C. J. Bajpai v. Niyunatran : AIR 1972 M P 122, Chhitu v. Mathuralal : AIR 1981 M P 13, Pannalal v. Kishanlal, AIR 1952 Nag. 34, and Narendra Kumar v. M/s Vimal Kumar and 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.

(3.) THE contention of Shri Jain that the decree was a consent decree, based on a compromise; hence the lower appellate Court erred 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 under Section 151 and thereafter held an enquiry and reviewed its earlier order. Reviewing of the earlier order by the trial court was not permissible on an application under Section 151. There is a specific provision for review in the Code of Civil Procedure which is provided in Section 114 and 0.47 R. I. Admittedly, the trial court exercised powers under Section 151 and not under 0 47. It is trite law that inherent jurisdiction of the court must be exercised subject to the rule that if the Code does contain a specific provision which would meet the necessities of the case, much provision should be followed and inherent 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 under Section 151 of the Code cannot be exercised as an appellate power. (See Main Singh v. Keenwarjee) : AIR 1970 SC 997. 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 earlier 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 under Section 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 recall 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 under Section 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 v. Bhagwandas : AIR 1985 MP 171, wherein C. P. Jain and Gulab Gupta, J.I., gave their separate 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 K C. Dora and other v. Contraddi Annamanaidu and Ors. : 1974 1 SCC 567.