LAWS(P&H)-2012-1-926

RAM PHAL Vs. CHANDRO AND OTHERS

Decided On January 18, 2012
RAM PHAL Appellant
V/S
CHANDRO AND OTHERS Respondents

JUDGEMENT

(1.) Defendant has filed this revision petition under Article 227 of the Constitution of India to impugn the order dated December 6, 2010 passed by Civil Judge, (Junior Division), Panipat, dismissing the suit of the plaintiff- petitioner being not maintainable in view of the provisions of Order 23 Rule 3-A CPC while allowing the application of the defendantrespondents objecting to the maintainability of the suit.

(2.) The brief facts which are relevant for the adjudication of the present petition are that plaintiff- petitioner had filed a suit challenging the consent decree dated August 21, 1986 passed on the basis of the statement of the plaintiff and others consenting that the suit property vested in Chandro, defendant- respondent No.1. The plaintiff has averred in the plaint that he never appeared in the said civil suit titled Chandro Vs. Boti etc. nor made any statement in the suit. He had not even engaged any counsel to represent him in the said case. Defendant No.1 Chandro filed an application for dismissal of the suit on the ground that a separate suit challenging the judgment and decree passed upon a compromise prepared under Order 23 Rule 3 A CPC claiming that plaintiff- petitioner was a party to the said suit and it was decided on August 21, 1986. It was not permissible to the plaintiff-petitioner to challenge the consent decree after a lapse of 24 years. The trial Court vide impugned order relying upon the judgment of Supreme Court in Pushpa Devi Bhagat (D) by LRs. Vs. Rajinder Singh and others, 2006 AIR(SC) 2628 held that no independent suit can be filed for setting aside the compromise decree on the ground that compromise was not lawful in view of bar contained in Order 23 Rule 3A CPC and that the only remedy available to the plaintiff to avoid consent decree was to approach the Court which recorded the compromise and passed the decree in terms of it and to establish that there was no compromise. Under the said observations, the suit of the plaintiffpetitioner has been dismissed as not maintainable.

(3.) Counsel for the plaintiff- petitioner has submitted that respondent No.1 alongwith Smt.Chameli Devi had earlier filed a suit No.673 of 1981 for declaration that they are owners in possession to the extent of 2/3 rd share each in equal share of land measuring 88 kanals 1 marla comprised in Khewat No.2 khatoni No.4. The said suit was dismissed in default under Order 9 Rule 3 CPC on January 13, 1982. Thereafter respondent No.1 again filed a suit on August 12, 1984 for declaration to the effect that respondent No.1 alongwith defendants 1 and 3 i.e. Smt.Bhoti and Smt.Chameli are co-owners/ joint owners in possession to the extent of 1/3 rd share each in the suit land mentioned in the plaint besides challenging the revenue entries. A detailed reply had been filed by the petitioner who was defendant No.2 alongwith Bhoti, defendant No.1 and Phoolwati defendant No.4 as such there was no occasion for the petitioner and Bhoti to make a statement for compromising the suit. Plaintiff in the said suit had played a fraud upon the petitioner and got the statements of the parties recorded at their own to the effect that the matter has been compromised.