DEBI PROSAD BASU Vs. AMIT CHAKRABORTRY

JUDGEMENT

(1.) In this application under section 115 of the Code of Civil Procedure, a challenge has been thrown in respect of the order dated 27th September 2001 passed by the learned Civil Judge (Senior Division), 2nd Court, Alipore, South 24 Parganas wherein an application under Order 7 rule 11(d) read with the Order 23 rule 3A of the Code of Civil Procedure was rejected on contest without cost.

(2.) According to me, such order is totally de hors the well settled principle of law as well as the judgment passed by our High Court and the Supreme Court. The Order 7 rule 11 (d) speaks that where the suit appears from the statement in the plaint to be barred any law, the same shall be rejected. In Order 23 rule 3A of the Code of Civil Procedure, effective from 1st February, 1977 speaks that no suit shall lie to set aside a decree on the ground that the compromise on which the decree passed was not lawful. Therefore, the second suit is barred by law. In the judgment reported in AIR 1993 SC 1139 (Banwari Lal v. Smt. Chando Devi through Lr & Anr.) it was held by the Supreme Court that a party challenging a compromise can file a petition under proviso to rule l3 of the Order 23, or an appeal under section 96(1) of the Code, in which he can now question the validity of the compromise in view of the Rule 1A of Order 43 of the Code. If the agreement of the compromise itself is fraudulent then it shall be deemed void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. Such ratio of the judgment was taken care of by a Division Bench of this Court and also delivered a judgment which has been reported in 1995(1) CLJ 80 (Morium Bibi v. Musst. Showkatara Begum & Ors.). The Division Bench also held that no independent suit challenging the compromise on the ground of fraud or otherwise is competent in view of specific bar provided in Rule 3A Order 23 of the Code of Civil Procedure

(3.) The learned Judge of the Court below totally proceeded in the wrong premises and dismissed the application by saying that the defendant has not made out a ground for rejection of the plaint. Admittedly, from the submission as made by the learned counsel appearing for the opposite parties with regard to the judgment reported in 2003(2) CHN 88 (Saleem Bhai & Ors. v. State of Maharashtra & Ors.), it appears that in case of rejection of the plaint, the parameter of rejection would be the averments made in the plaint. In any event, the judgment and order which has been passed by the learned Court below is wholly erroneous and liable to be set aside. Incidentally, the learned counsel appearing for the opposite parties has drawn my attention to the section 44 of the Evidence Act. Therein I find any party to a suit or other proceeding may show that any judgment, order or orders which is relevant under sections 40, 41, 42 and which has proved by the adverse party, delivered by a Court not competent to deliver it, or obtained by fraud or collusion. According to me, such submission is misconceived because of the reason that the Evidence Act will not guide how and in what manner the suit or proceeding will be proceeded. The fundamental principle is that the same will be regulated by the Code of Civil Procedure. For the purpose of ascertainment of the evidence, the principle of Evidence Act will be applicable. However, according to me, the learned counsel appearing for the opposite parties is proceeding in a wrong premises. The analysis of the judgment of the Supreme Court and our High Court is that one can take the plea in the suit itself or by preferring an appeal. Therefore, he is not debarred from taking such plea. The Court is only concerned whether the second suit is maintainable or not. Since the law prohibiting institution of the second suit, such suit cannot be proceeded with. Therefore, the order, which has passed by the learned Court below stands, set aside. The revisional application stands allowed and accordingly disposed of. There will be no order as to costs. Application allowed