SHANTI DEVI Vs. GIAN CHAND

JUDGEMENT

(1.) THIS Regular Civil Second Appeal arises out a of a suit for declaration challenging a compromise decree dated 31.08.1979 passed by the learned Sub Judge IInd Class, Jagadhri, in Civil Suit No. 203 of 1979, titled Gian Chand v. Smt. Shanti. The compromise decree referred to above, has been challenged on the ground of fraud, coercion, misrepresentation etc. The learned trial Court vide its judgment and decree dated 07.08.1982, dismissed the suit filed by the plaintiff-appellant. The learned Lower Appellate Court vide its judgment and decree dated 22.02.1985 dismissed the appeal and affirmed the judgment and decree of the learned trial Court.

(2.) WHEN the appeal was taken up for hearing, it came to the notice of this Court that the compromise decree challenged in the suit was passed on 31.08.1979 and the suit came to be filed on 06.12.1979. On noticing these dates, I found that the suit itself is not maintainable in view of the specific bar contained in Order 23 Rule 3-A of the Code of Civil Procedure. Learned counsel for the appellant was, accordingly, asked to satisfy the Court regarding the maintainability of the suit as is observed in the order dated 8.8.2007.

(3.) NO doubt, the respondents have not raised any objection regarding the maintainability of the suit. It is also true that the maintainability of the suit is not challenged by the defendant-respondent in the written statement or in any other manner. The learned trial Court proceeded to try the suit and a decree also came to be passed dismissing the suit on merits, but not on the ground of its non-maintainability. Even when the appeal came to be filed before the learned Lower Appellate Court, no such question was ever raised by the defendant-respondent. Obviously, no issue in this regard has been framed in the absence of any pleadings to this effect. Even when this appeal came up for final hearing, the question regarding maintainability of the suit has been raised by the Court and not by the respondents. When the maintainability of any lis before the Court comes to its notice either by the parties to the litigation or of its own, it becomes the duty of the Court to consider the same. I feel that it is the obligation of this Court to apply law notwithstanding whether any such objection is raised by any of the parties to the lis or not. This is particularly so where the question is of the competence of the Court to decide an issue. It is in this view of the matter that the parties were put to notice and asked to argue the question of maintainability of the suit in view of clear and categorical provisions of Order 23 Rule 3-A of the Code of Civil Procedure. I do not subscribe the view of the learned counsel for the appellant that the objection regarding the maintainability of the suit can alone be raised by a party to the lis. It should not be forgotten that when a Court is seized of a matter, it is its legal and constitutional obligation to consider all relevant factors and questions of law arising in the case irrespective of objections from the parties to the litigation. This rule is particularly applicable where the question relates to jurisdiction and competence of the Court. I am of the considered view that the Court has the jurisdiction and competence to raise the question of maintainability of the suit even in the absence of any plea by the parties concerned. Question No. 1 is, accordingly, answered. Question No. 2