IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1839 of 2006 SMT. PRABHAWATI SINHA, D/o Sri Hemant Sinha, R/o Mohalla – Golghar, P.S. – Kotwali, Distt. – Patna, At present resident of Tarachak, P.S. Danapur, Distt. Patna …………………………. Petitioner / Defendant Versus 1. HEERA RAI, S/o Late Babu Lal Rai, 2. Suresh Rai, S/o Late Babu Lal Rai, 3. Smt. Manti Devi @ Mananti Devi, W/o Late Ram Dular Rai, All three residents of Saguna, P.S. Danapur, Distt. Patna and 4. Parash Rai, S/o Sri Sheo Ratan Rai, R/o Mohalla Saguna Naya Tola, P.S. Danapur, Distt. Patna ………..… Opposite Parties / Plaintiffs. ----------- For the Petitioner:- Mr. Neeraj Kumar, Advocate. For the Opposite Parties:- Mr. Pushkar Narain Shahi, Mr. Ritesh Kumar and Mr. Ravi Kumar, Advocates. ----------- 8. 28.10.2009. This Civil Revision is directed against the order dated 15.09.2006 passed by the Sub Judge VII, Patna in Title Suit No. 377/2005 whereby the prayer of the defendant – petitioner to declare that the suit is barred under Order XXIII Rule 3A of the Code of Civil Procedure (hereinafter to be referred to as `the Code’) had been rejected. In the Title Suit No. 140/2005, a compromise was entered into and, accordingly, a decree was drawn after accepting the compromise under Order XXIII Rule 3 of the Code. The plaintiffs – opposite parties filed Title Suit No. 377/2005 challenging the aforesaid decree on 2 the ground that the decree has been obtained by playing fraud upon the plaintiffs and, thus, shall be set aside as the same was not lawful. A petition had been filed by the defendant – petitioner under Order VII Rule 11 of the Code stating therein that the suit challenging the decree drawn on the basis of the compromise under Order XXIII Rule 3 of the Code is barred under Order XXIII Rule 3A of the Code. The trial court has rejected the prayer and proceeded further in the title suit. It has been informed by the opposite parties that the defendants had appeared in the suit concerned, filed written statement, issues had been framed and several witnesses had also been examined by the trial court. I have heard the parties and perused the records of this case. Learned counsel for the petitioner submitted that there is specific bar under the provisions as contained in Order XXIII Rule 3-A of the Code to the effect that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Thus, the contention is that the trial court 3 had erred in dismissing the petition filed on behalf of the petitioner and in proceeding further in the title suit. Learned counsel for the petitioner placed reliance upon a decision of the Apex Court in Banwari Lal Vs. Smt. Chando Devi & Anr., (AIR 1993 SC 1139). The Apex Court, while allowing the appeal preferred against the order of the High Court in revision application filed by the respondent holding that the trial court could not have entertained the application filed on behalf of the appellant for recall of the order regarding a compromise entered between the appellant and the respondent, had held that a party challenging a compromise can file a petition under proviso to Rule 3 of Order XXIII, or an appeal under Section 96(1) of the Code, in which he can question the validity of the compromise in view of Rule 1A of Order XLIII of the Code. Learned counsel had next placed reliance upon a Division Bench decision of this Court rendered in Guru Charan Singh & Ors. Vs. Mahatam Singh & Anr. [2006(3) PLJR 345]. This Court has held in the aforesaid decision that the title suit challenging a decree 4 drawn on the basis of compromise, on the ground of fraud etc. would not be maintainable in view of the clear bar created under Order XXIII Rule 3A of the Code. Learned counsel for the petitioner also placed reliance upon a decision of this Court in Jaimangal Kr. & Anr. Vs. Dinesh Yadav & Anr., [2005 (1) BBCJ V-189] wherein this Court relying upon the decision of the Apex Court in Banwari Lal Vs. Smt. Chando Devi & Anr. (supra) had held that conjoint reading of the two rules, i.e., Rules 3 and 3A of Order XXIII, would make it crystal clear that any illegality including fraud committed in regard to the compromise decree could be questioned in the same court which has passed the compromise decree by filing miscellaneous case and not by separate suit in other court. Thus, the submission on behalf of the petitioner is that the suit was not maintainable in view of the law laid down by the Apex Court and followed by this Court as aforesaid. To appreciate and consider the point of controversy it would be apt to quote Section 9 of the 5 Code of Civil Procedure as under:- “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation [I].- A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II.- For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” It is explicit from the aforesaid provision of law that the court shall have jurisdiction to try all suits of civil nature except those that are expressly or impliedly barred. By the provision under Section 74 of the Code of Civil Procedure (Amendment) Act, 1976, Rule 3-A had been inserted after Rule 3 of Order XXIII of the Code, whereby specific bar has been created for filing and entertaining a suit for setting aside a decree on the 6 ground that the compromise on which the decree is based was not lawful. Rule 3A of Order XXIII of the Code is quoted as follows:- “3-A. Bar to suit.- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” However, a new proviso had also been added in Rule 3 of Order XXIII of the Code by Section 74 of the Code of Civil Procedure (Amendment) Act, 1976, which is quoted as under:- “Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.” Now the question arises as to whether a suit for setting aside a compromise decree on the ground that the same has been obtained by playing fraud upon the defendants would also be covered under the aforesaid provision. The question has been answered by the Apex court in Banwari Lal Vs. Smt. Chando Devi & Anr. 7 (supra). In that case, an application for recall of the order accepting a compromise alleged to have been entered between the parties, on the ground of fraud etc. was filed and entertained by the trial court, but the High Court in its revisional jurisdiction had held that the trial court was not empowered to entertain the application for such recall. The order of the High Court was tested before the Apex Court and the Apex Court had held as under:- `13. When the amending Act introduced a proviso along with an explanation to Rule 3 of O. 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, “the Court shall decide the question”, the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise “which is void or voidable under the Indian Contract Act …..” shall not be deemed to be lawful 8 within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R. 1(m) of O. 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to R. 3 of O. 23, or an appeal under S. 96(1) of the Code, in which he can now question the validity of the compromise in view of R. 1A of O. 43 of the Code.’ Same view was earlier taken by the Division Bench in the case of Lagandeo Singh Vs. Satyadeo Singh & Ors., [1992 (2) PLJR 184] holding that Amendment Act of 1976 is intended to curb tendency to fabricate compromise petition or take frivolous objection to genuine compromises arrived at between parties to a suit. Thus, the question whether the compromise is vitiated or not due to undue influence, fraud, coercion, misrepresentation, etc. could either be decided in the very same suit by filing an application under the 9 provision to Rule 3 of Order XXIII or by challenging the decree in appeal. The relevant passage is reproduced as follows:- “6. x x x x x. The question, whether compromise is vitiated or not due to undue influence, fraud, coercion, misrepresentation etc. is required to be decided in the very same suit, if it is so alleged. The objection to the recording of compromise can be taken immediately after compromise petition is filed and before the same is recorded. Can it be said that a party who does not object to the recording of compromise before its recording is precluded from objecting to the same after its recording and/or passing of decree. If this interpretation is given to proviso to Order XXIII Rule 3 of the Code, the same would defeat the very purpose of the amendment. There may be a case where compromise petition is fabricated, the same is filed before the court on a date not fixed in the suit, behind the back of the concerned party and without his knowledge, the same is recorded and decree is passed accordingly. There may be some other reason due to which a party could not have objected to the recording of compromise before it was recorded and decree passed, in my opinion, 10 a party can be allowed to object to the recording of compromise even after compromise is recorded, but no decree has been passed or a compromise decree has been passed, by filing an application to that effect, if the court is satisfied in relation to the grounds for not taking objection before recording of the compromise and/or passing of compromise decree. A party can, for the first time, challenge the compromise in appeal against the decree, if the circumstances so justify and the party is able to satisfy the appellate court that compromise was not lawful for any reason. x x x x x x x” However, in Guru Charan Singh & Ors. Vs. Mahatam Singh & Anr. (supra), the Division Bench of this Court has held that the only remedy open for challenging the decree even on the ground of fraud is to prefer an appeal under Section 96 of the Code. It appears, however, that the consequence of the newly added proviso to Rule 3 of Order XXIII of the Code by the Amendment Act, 1976 discussed in the aforesaid decisions of the Apex Court Banwari Lal Vs. Smt. Chando Devi & Anr. (supra) as well as the Division Bench of this Court in Lagandeo Singh Vs. Satyadeo 11 Singh & Ors. (supra) was neither raised nor considered by the Division Bench. In the case of Budhia Swain & Ors. Vs. Gopinath Deb & ors., [(1994) 4 SCC 396] it has been held by the Apex Court that a tribunal or court had inherent power to review the order or judgment which has been passed by it on certain grounds depicted therein including one on the ground of fraud or coercion. In view of the aforesaid, I also respectfully follow the law laid down by the Apex Court and this Court, as discussed above, and hold that Title Suit No. 377/2005 filed for setting aside the compromise decree passed in Title Suit No. 140/2005 was not maintainable. The trial court has committed serious error of jurisdiction in holding that the suit is maintainable and in deciding to proceed further in the matter. The remedies available to the plaintiffs – opposite parties were either by filing a Miscellaneous Case before the same court for recall of the order recording compromise and consequential decree or to challenge the decree in an appeal under Section 96(1) of the Code. Learned counsel for the plaintiffs-opposite 12 parties lastly submitted that the suit had proceeded further, issues had been framed and several witnesses have also been examined in the suit. Even if a miscellaneous case ought to have been filed by the opposite parties, the procedure for disposing of the aforesaid case would have been similar to that of the procedures laid down in the Code for the disposal of suits. Thus, submission is that they may be allowed to convert the suit into the miscellaneous case. Learned counsel appearing for the petitioner submitted that since the suit was not maintainable, thus, the pleading on record as well as the evidence led therein could not be considered and appreciated by the Court. Therefore, the suit can not be allowed to be converted into miscellaneous case. I do not find any force in the submissions raised on behalf of the petitioner. Interest of justice cannot be held to be subservient to the hyper technicalities. The petitioner has appeared in the case, has filed written statement and participated in the suit also subsequently. It is also the fact that the procedure for disposal of the miscellaneous case would also be 13 similar to that which has been prescribed in the Code for disposal of the suits. Therefore, in my opinion, if the suit is allowed to be converted into a Miscellaneous case, then it will prejudice none of the parties. Thus, ex debito justitiae this Court thinks it proper that the plaintiffs – opposite parties may be allowed to convert the suit into a miscellaneous case. This prayer of the opposite parties is allowed. They may be allowed by the trial court to convert the title suit concerned into a miscellaneous case within two months from the date of receipt or production of a copy of this order. It has been informed by the parties that the suit has been transferred from the court of Sub Judge VII, Patna, which had allowed compromise, to Sub Judge, Danapur at the instance of the petitioner. Such being the situation, this Court directs the District Judge, Patna to transfer the suit from the court of Sub Judge, Danapur to the court concerned or its successor court, which has passed the compromise decree. With the above directions and observations, this Civil Revision is allowed. dk ( Dr. Ravi Ranjan, J. )