MOHAMMAD DAUD Vs. ABU MOHAMMAD

JUDGEMENT

(1.) The plaintiff-appellant in this Miscellaneous First Appeal filed a title suit for redemption of a zarpeshgi bond dated the 17th May, 1901, in respect of 1 bigha 17 kathas of land. The bond had been executed by one Abul Hussain who was a Khatib of Jama Maszid at village Markan. The plaintiff filed the suit, claiming to be the present Khatib. The first defendant in the suit was Abu Mohammad, respondent No. 1. He was the mortgagee. Singhasan Bind was impleaded as the second defendant in the suit as the suit plot was recorded as kasht batai of Muthu Bind, father of Singhasan Bind, in the Revisional Survey record-of-rights. The suit was contested, but the learned Munsif gave a decree to the plaintiff. Singhasan filed an appeal in the lower appellate Court. A compromise petition was filed in the appeal on the 12th April, 1958, alleging that the mortgagee Abu Mohammad had given the suit land to the appellant for cultivation, but he had learnt that the appellant could not acquire any right to cultivate the land during the subsistence of mortgage, and, therefore he approached the respondent for a compromise and said that he would have no connection with or interest in the land and the appeal would be dismissed and the respondent would forego his claim for costs and mesne profits. There will be no necessity of any delivery of possession as the plaintiff Khatib had taken possession of the land. The appeal had been transferred from the Court of the District Judge to the Additional Subordinate Judge, 6th Court, for disposal on the 24th March, 1958. The date of hearing fixed in the appeal was the 16th April, 1958. The compromise petition was ordered to be put up, therefore, by the learned Additional Subordinate Judge on the 16th April, 1958. Since defendant No. 1, who was respondent No. 2, in the appeal, had not joined in the compromise petition, some defect was pointed out and the lawyer for respondent No. 1 was heard in the matter on the 16th April, 1958. The case was directed to be put up on the 17th April, 1958, in the presence of the appellant's lawyer. On the 17th April, 1958, nobody turned up, and the case was adjourned to the 25th April, 1958. On this date the appellant filed a petition, for time to file a petition challenging the compromise petition. As I shall show that the facts are in dispute between the parties in regard to the terms, it will be of some importance to note that only a time petition was filed on the 25th April, 1958, and later on, on the 30th April, 1958 an objection petition was filed objecting to the recording of the compromise chiefly on the ground that in the presence of certain persons named in paragraph 4 of the petition "it was decided that the plaintiff respondent would pay to the appellant a sum of Rs. 700/- and the latter would forgo his claim to the land in suit and it was also decided that as the aforesaid sum was not available to the plaintiff-respondent then, he would pay to the appellant the money in ten days and the terms would be mentioned in the compromise petition and the same will be filed in the Court." It was further asserted in the 5th paragraph that "that accordingly the appellant and the respondent No. 1 came to Chapra and respondent No. 1 got a compromise petition drafted and written by his clerk Hanif Mian and the appellant who is illiterate in good faith put his thumb-mark on the said compromise petition. The compromise petition was not read over and explained to the appellant" It is further stated in the subsequent paragraph that the appellant (defendant No. 2) approached the respondent No. 1 (plaintiff) on the 23rd April, 1958, and the 24th April, 1958, for payment of the said sum of Rs. 700/-. But the money was not paid, and at this he got enquiries made at Chapra on the 24th April, 1958, and learnt from his lawyer on the 25th April, 1958, that me term of payment of Rs. 700/- had not been mentioned in the compromise petition. Them lastly it was asserted in the 12th paragraph that "the appellant most respectfully submit that the plaintiff-respondent practised fraud upon the appellant by having got a compromise petition filed against the terms arrived at between the parties at the intervention of their well-wishers." In a nut-shell, therefore, the compromise is being attacked on the ground that the alleged term regarding the payment of Rs. 700/- was fraudulently not inserted in the compromise petition.

(2.) The learned Additional Subordinate Judge has enquired into this matter and has held that the appellant's case set out in the objection petition is acceptable. In that view of the matter he has refused to record the compromise. The plaintiff-respondent No. 1 in the Court below has, therefore, come up to this Court in appeal.

(3.) In the beginning I entertained some doubt as to whether the Court could enquire into the matter alleged in the objection petition under Order 23, Rule 3 of the Code of Civil Procedure where the factum of compromise was not denied and it was only asserted on behalf of the second defendant that by practising fraud all the terms agreed upon between the parties had not been incorporated in the compromise petition. Some cases were cited before me on behalf of both sides where a clear distinction has been drawn between a case of fraud having been practised on the parties and fraud practised on Court and I was inclined to take the view that this was a case where no fraud is alleged to have been practised on Court, but simply On the party, and, therefore, it is beyond the scope of enquiry under Order 23 Rule 3. Even on the face of the objection petition filed on behalf of defendant No. 2 the Court had no alternative but to record it because the compromise on the face of it was lawful and the disputes between the parties in relation to the suit had been adjusted wholly. But feeling some difficulty in taking a decisive view in regard to this question of law I proceeded to hear learned Counsel for the parties and to examine for myself the facts of the case. After having carefully examined them and the evidence in regard to this matter I have absolutely no doubt in my mind that the Case of Singhasan Bind is not correct and the learned Additional Subordinate Judge has committed a gross error in refusing to record this compromise.