GHULAM RASOOL RESHI Vs. GHULAM HASSAN RESHI

JUDGEMENT

(1.) Respondent No. 1 filed suit, challenging the decree based on compromise passed by Munsiff Anantnag in 1968 on the ground that the respondent/defendant to that suit, a minor was not properly represented in the suit and a guardian was not appointed for him as required under law. During pendency of this suit appellant filed an application for rejection of the plaint on the alleged ground that the suit was hit by O. 23, R. 3-A, CPC. The trial Court upon hearing the parties rejected the plaint. Appeal was filed against this order before District Judge Anantnag. In appeal, while the trial Court order was set aside, the suit was directed to be treated as application under Section 151 CPC. Against this first Appeal Court order dated 31-7-2000, 2nd Appeal is filed. The substantial question of law that arises for determination in this 2nd Appeal, is whether a suit challenging a compromise decree under O.23, R. 3-A, is competent and whether such a suit can be treated as application under Section 151 CPC by the Courts below.

(2.) A few facts which need to be taken note of are that a suit for declaration and injunction was filed against the Respondent No. 1 and registered so on 27-4-1968 in the Court of Munsiff Anantnag. Respondent No. 1 Hassan Reshi was a minor of about 7 to 8 years of age. This suit was compromised on 18-6-1968, after said Hassan Reshi was shown represented by one Wali Reshi as guardian ad litem. Compromise decree followed. Subsequently this compromise decree is challenged in Civil Suit 9/93 filed in Munsiffs Court Anantnag, on the ground that the compromise decree came into existence fraudulently, when in fact the minor defendant was not at all represented in the suit. No guardian was appointed on his behalf and that the decree is based on forged and false compromise in contravention of provisions of law. The respondent/appellant in the suit filed an application under O. 7 R. 11 CPC, for rejecting plaint as no suit was alleged to be maintainable against a compromise decree under O. 23, R. 3-A, CPC. The trial Court rejected the plaint on 27-12-1995 as barred under the said provision. The order is impugned in the 2nd Appeal. Notice is taken of the fact that on the very day and date when on 27-12-1995 trial Court rejected the plaint, application under Section 151 CPC was moved before the Court for recalling/setting aside of the compromise decree in question. This application is still pending before the trial Court.

(3.) The appellants counsel submits that in view of the Bar under O. 23, R. 3-A, CPC, the decree even if unlawful and based on compromise not properly drawn, cannot be questioned in a separate suit. The trial Court has not committed any illegality while rejecting the plaint under O. 7, R. 11 CPC. The remedy of respondent No. 1 may be anywhere, but not the suit. The order of the appellate Court in setting aside the order of the trial Court is not sustainable in law and the appellate Court has no powers to direct the main suit to be treated as application under Section 151 CPC by the trial Court, when in fact one such application was already pending before the trial Court. The paramount legal question arising in the facts and circumstances of the case is whether a suit dismissed in view of bar created by R. 3-A, of O. 23 CPC, can be treated as application in Appeal proceedings by the appellate Court and that too an application under Section 151 CPC when such an application was already pending before the trial Court.