RAMASHRAY SINGH Vs. JOGENDRA SINGH

JUDGEMENT

(1.) THE matter has come up for hearing under Order 41, Rule 11 of the Code of Civil Procedure along with I.A. No. 7361 of 1999. It was earlier laid before this court on 3.6.99 on which date notices were directed to be issued to the respondents and status quo in respect of suit land as existing on that date was ordered. On the return of the Rule, all the respondents have appeared. Respondent nos. 1 to 5 are represented by one counsel and respondent nos. 6 to 9 are together represented by another counsel. This appeal is directed against the order dated 9.4.99 passed by learned Subordinate Judge 4th, Bettiah, West Champaran, in Title Suit no. 40 of 1998 (Thag Singh vs. Jogendra Singh) whereby the plaintiffs claim under Order 39 Rule 1 C.P.C. has been rejected.

(2.) WHILE assailing the validity of the impugned order learned counsel for the appellant submits that the suit has been instituted for cancellation of the registered deed of sale dated 13.4.96 on the ground mentioned in paragraph 4 of the plaint which, in substance, is to the effect that plaintiff nos; 3 to 5 had been compelled by defendant no. 1 to alienate the suit property in favour of Sattan Yadav, an informant in a criminal case, in which plaintiff nos. 3 to 5 are accused and in that case he will ensure that they come out of the jail and are acquitted in the trial. A contract afflicted by undue influence within the meaning of section 16 read with illustration (h) to Section 23 of the Contract Act is void & inoperative (sic) relied. In other words, an agreement to drop prosecution is bad in law.

(3.) HAVING considered the rival submissions, I am of the view that this appeal ought to be allowed. Learned counsel for the appellant is right in his submission that substance of the plaintiffs ' case as set out in the plaint is prima facie hit by the provisions of section 16 read with illustration (h) of section 23 of the Contract Act. An agreement or contract to drop a prosecution is bad in law. In that view of the matter, the learned trial court erred in holding for purposes of application under Order 39, Rule 1 C.P.C. that the plaintiffs have no prima facie case to go to trial. Once it is held that the appellant has a prima facie case, it obviously follows that balance of convenience is in favour of the appellant, particularly in view of position that he is a vendor and was continuing in possession of the suit property from before.