NARINDER ANEJA Vs. HARBANS LAL AND ORS.

JUDGEMENT

(1.) This petition is against the order dated 18.4.2013 by which application filed by the petitioner under Order 23 Rule 3 of the CPC has been dismissed. In brief, the facts narrated before me are that one Ganga Ram has four sons and one daughter, namely; Narinder Aneja, Harbans Lal, Satish Chander, Jagdish Lal and Parkash Wanti. Ghanga Ram died on 1.7.2002 whereas his son Jagdish Lal died on 22.7.2005. The other brothers of the petitioner, namely; Harbans Lal, Satish Kumar and Jagdish Lal set up a registered Will dated 2.3.2000 excluding the petitioner and his sister Prakash Wanti. He challenged the Will by way of suit for declaration stating that the mutation of inheritance No. 1677 sanctioned on 12.3.2008 on the basis of Will 2.3.2000, is illegal, null and void and not binding on his rights and also sought a declaration that Will dated 2.3.2000 is illegal. A compromise was effected on 14.7.2009 but it was not signed by one of the sons of Ganga Ram namely; Satish Kumar. In order to incorporate the compromise in the pleadings, the petitioner filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint. But his application was dismissed on 11.1.2013. He filed Civil Revision No. 306 of 2013, which was disposed of on 17.1.2013. Order dated 11.1.2013 was set aside. However, liberty was granted to the petitioner to file application under Order 23 Rule 3 of the CPC. Then according to the petitioner, another compromise was entered into between the parties on 3.5.2012. The petitioner then filed an application under Order 23 Rule 3 of the CPC for passing the decree in terms of the compromise dated 3.5.2012. This application was contested by the respondents by filing a reply and in Para No. 5 of the reply, the existence of the compromise and that the original is lying with Kharaiti Lal (son-in-law of Ganga Ram), was also denied. The learned trial Court vide its impugned order dismissed the application observing that only the plaintiff is urging that the compromise has taken place though it is denied by the defendants and thus, the compromise could not have been produced before the Court. Unless and until certain conditions were fulfilled as per Para No. 1 of the compromise and original of the compromise has been withheld by the parties and on the basis of photocopy, order under Order 23 Rule 3 of the CPC cannot be passed. Against this order, the present revision petition has been filed.

(2.) Learned counsel for the petitioner has submitted that two questions are involved in this revision petition, first; whether in case of assertion by the plaintiff of compromise and denial by the defendants of its existence, the trial Court should have hold an enquiry by framing an issue? Second question arises is 'whether the plaintiff could have been granted an opportunity to prove the existence of the original compromise with the aid of Sections 65 and 66 of the Indian Evidence Act, 1872? Learned counsel for the petitioner has further argued that the answer to the first question is itself provided in Order 23 Rule 3 of the CPC.

(3.) In order to appreciate his argument, it would be relevant to refer to the provision, which reads as under:--