C.R. No. 6142 of 2009 1 ****** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 6142 of 2009 (O&M) Date of Decision : 16.07.2010 Smt. Sumitra Devi .......... Petitioner Versus Sh. Surinder Kumar Sehgal & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. S.S. Dinarpur, Advocate for the petitioner. Mr. R.S. Mamli, Advocate for respondent Nos.1, 4 & 5. Mr. R.K. Agnihotri, Advocate for respondent No.2. **** VINOD K. SHARMA, J. (ORAL) The petitioner has invoked the revisional jurisdiction of this Court to challenge the order dated 30.4.2009, passed by the learned Civil Judge (Sr. Div.), Jagadhri, vide which judgment and decree passed in Civil Suit No. 209/CS/96/98 decided on 16.10.1999 has been set aside. The petitioner Smt. Sumitra Devi filed a Civil Suit No. 209CS/96/98 titled Smt. Sumitra Devi Vs. Harvinder Kumar Sehgal etc.” seeking a decree for declaration, that the plaintiff is owner in possession of the properties mentioned hereinafter :- (1) one residential house and shops forming C.R. No. 6142 of 2009 2 ****** part and parcel of unit No. 62-A, Model Town, Yamuna Nagar, constructed in an area of 30' x 69' bounded as north Model Town Road, South vacant ground, east residential home of Sh. Vidya Lankar West- property of Sh. Ram Kishan Sehgal, situated within the municipal limits of Municipality Yamuna Nagar as per site plan attached. (2) One industrial plot measuring 50' x 90' forming part & parcel of 0/3, Industrial area, Yamuna Nagar bounded North Factory Poly Plastic South Plot Sh. Ramesh Kumar Road Subzi Mandi West Factory Gulshan Kumar as per site plan attached, are attached within the municipality Yamuna Nagar.” During the pendency of the suit, the parties entered into compromise Ex. “CX” and placed on record site plan Ex. 'CY' drawn in pursuance to the compromise entered into between the parties while decreeing the suit on the basis of the compromise, compromise Ex. “CX” and site plan Ex. 'CY' were made part of the decree. Mr. Surinder Kumar Sehgal, respondent herein thereafter filed a suit for declaration claiming therein, that the decree dated 16.10.1999, referred to above, was null and void, non est, absolutely illegal, having been obtained by fraud and misrepresentation and concealment of facts. The decree was said to be non-operative, ineffective and not binding on the right, title and interest of the plaintiff, in any manner, whatsoever. It was also claimed that Mr. Surinder Kumar Sehgal, C.R. No. 6142 of 2009 3 ****** respondent still continues to be absolute owner in possession of his share i.e. two rooms, marked R-1 and R-2 and a kitchen, marked K- 1, having its back side opening in the southern side. Consequential relief of injunction was also sought. During the pendency of the suit Mr. Surinder Kumar Sehgal, respondent admitted, that the suit framed by him was not competent, therefore, moved an application to treat the suit to be an application in the Civil Suit No. 209/CS/96/98 filed by the petitioner. The suit was treated to be an application and the learned trial Court came to the conclusion, that the compromise Ex. CX was not binding on Mr. Surinder Kumar Sehgal, as he was not party to the said compromise, therefore, the Court was not competent to decree the suit on the basis of Compromise Ex. CX and site plan Ex. CY. The petitioner has challenged order, vide which while accepting the application, the decree passed on 16.10.1999 in the suit titled as “Smt. Sumitra Devi Vs. Sh. Harvinder Kumar Sehgal & others” has been set aside. The findings recorded by the learned trial Court in setting aside the decree based on the basis of compromise cannot be questioned, as admittedly Mr. Surinder Kumar Sehgal was not party to the said compromise. The learned trial Court committed an error in consigning the file to record room by setting aside the decree. This part of the order vide which the file was consigned to C.R. No. 6142 of 2009 4 ****** record can not be sustained in law. The suit filed by Smt.Sumitra Devi-petitioner was not filed on the basis of compromise, but by claiming her right to be the owner in possession of the properties. The learned Court while setting aside the decree based on compromise, was required to restore the original suit by permitting the parties to contest the suit on merit. No finding on merit of the suit filed by Smt. Sumitra Devi has been recorded. The learned Court while setting aside the decree has closed the suit. In view of what has been stated above, this revision petition is partly allowed, while upholding the order in setting aside the decree dated 16.10.1999, the case is remanded back to the learned trial Court to proceed with suit No. 209/CS/96/98 in accordance with law from the stage when the parties entered into the compromise. The parties through their counsel are directed to appear before the learned trial Court for further proceedings in accordance with law on 20.9.2010. 16.07.2010 (VINOD K. SHARMA) 'sp' JUDGE