CHANDESHWAR SHARMA Vs. JAIKISHORE SHARMA

JUDGEMENT

(1.) The plaintiffs, in a suit for partition being Title Partition Suit No. 371 of 1973 of the Court of the Additional Subordinate Judge, Hajipur, have moved this Court under section 115 of the Code of Civil Procedure (hereinafter referred as 'the Code') against an order dated 10-9-197(sic) accepting the compromise and directing for the disposal of suit in terms thereof. The plaintiffs, that is to say, the petitioners and Respondent Nos. 5 to 8 filed the suit for partition of the properties described in Schedule-I to the plaint and further for declaration that four sale deeds, dated 2-4-1968, executed by one Lalbati Devi and Ram Dulari Devi in favour of defendants Nos. 1, 2, 3 and 4 (opposite party) were inoperative and void. The defendants-opposite party appeared and filed their written statement. The said suit was decreed on 26-7-(sic) by the learned Subordinate Judge against the contesting defendants with costs and all the four sale deeds dated 2-4-1968 executed by Mosst. Lalbati Devi and Ram Dulari Devi in favour of defendants Nos. 1 to 4 were declared inoperative. Against this preliminary decree, the defendants preferred an appeal, but on the statement that the suit was going to be disposed of on the basis of a compromise, the same was permitted to be withdrawn. Petitioner No. 1, who resides at Bombay, and petitioner No. 2, who resides at Buxar, however, came to know, as alleged, in the year 1979, that the defendants-first set opposite party by taking advantage of the old age and ailments of Bindeshwar Sharma, plaintiff No. 1 (opposite party No. 5) got a compromise petition filed in the Court of the Subordinate Judge, Hajipur on 1-3-1977. They appeared and filed a petition objecting to the compromise. They alleged that the said compromise petition was not genuine inasmuch as some of the signatures obtained thereon were forged and no leave had been asked for on behalf of the minors for entering into a compromise petition. The petitioners alleged that they had not signed the compromise petition and their signatures thereon were forged. On 10-9-1979, when the case was called out, the learned counsel appearing on behalf of the defendants-opposite party pressed for recording the compromise but the learned counsel appearing for the plaintiffs, although present, made no pairvi. A petition for time was filed on behalf of the petitioners but the learned Subordinate Judge rejected the same and ordered to proceed with the compromise matter. On the same day, later, he disposed of the suit in terms of the compromise. The petitioners have questioned the validity of the said order.

(2.) Two errors of law are apparent. Admittedly, Kameshwar Sharma, Mahesh Sharma and Umesh Sharma, Opposite Party Nos. 6 to 8, respectively are minors. They are also said to have compromised the dispute. O.XXXII R.7 of the Code says that no next friend or guardian of a minor can enter into any agreement or compromise on his behalf with reference to the suit in which he acts as next friend or guardian without the leave of the Court. Application for leave to compromise is required to be filed accompanied with an affidavit by the next friend or the guardian in the suit and also, if the minor is represented by a pleader, by the certificate of the pleader to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor. The said rule also says that the opinion, so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement of compromise proposed is for the benefit of the minor. It also says that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. There is no mention in the impugned order that any application for leave to enter into the compromise on behalf of the minors was filed in this case. Learned counsel appearing for the opposite party has drawn my attention to Annexure-6 to the counter affidavit but it neither appears to be an application with a certificate of the counsel representing the minor nor an affidavit by the next friend or guardian for the minor. The impugned order does not even show that the learned Subordinate Judge was alive of this principle that for a minor to enter into a compromise, the leave of the Court is necessary. Learned counsel for the opposite party has not been able to show that any petition for the leave of the Court was filed and/or that next friend or the guardian or the pleader representing the minors complied with the requirements of Order XXXII Rule 7 of the Code.

(3.) The other error is one attached to the character of the order passed by the learned Subordinate Judge. Order XXIII Rule 3 of the Code requires a Court to record a compromise where it is proved to its satisfaction that a suit has been adjusted wholly or in part by any lawful agreement or compromise. There is no attempt by the learned Subordinate Judge even to say a word that the compromise is lawful. The petitioners objected to the recording of the compromise on various grounds including their allegation that their signatures on the compromise petition were forged. Whether they appeared or not at the time of the recording of the compromise by the Court, it could not close its eyes to the objections raised by the petitioners. Those, who preferred the compromise, were required to prove to the satisfaction of the Court that the compromise was lawful and that the suit had been adjusted wholly or in part. The learned Subordinate Judge exercised a judicial discretion when he passed the impugned order. A judicial order is one which conforms to the judicial norms. An order, which gives no reason, states no facts and notices not even the provisions of law, cannot be said to be conforming to the requirements of making a judicial order. A speaking order is required to stand the test of judicial scrutiny by the superior Courts. The impugned order does not satisfy these requirements.