ORISSA HIGH COURT : CUTTACK W. P.(C) No. 2673 of 2006 In the matter of an application under Article 227 of the Constitution of India. ------------- Harinarayan Das …… Petitioner - Versus – - Smt. Jamuna Das and others …… Opp. parties For Petitioner : M/s. Maheswar Mohanty, R.K.Das & J.P.Das. For Opp. Parties : M/s. Karunakar Gaya & Jagadish Ray (For O.P.No.4) ----------------------- Decided on 25.10. 2011. ------------------------ P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------------- M.M. DAS, J. The petitioner in this writ application, has called in question the order dated 05.11.2005 passed by the learned Civil Judge (Junior Division), Balasore in Misc. Case No.121 of 1997, which was filed by the petitioner to set aside/recall the compromise decree passed in T.S. No.695 of 1995. 2. The facts reveal that the opposite party No.1 - Smt. Jamuna Das, who is the mother of the petitioner, filed T.S. No.695 of 1995 seeking a decree for partition alleging, inter alia, that the suit schedule ‘Kha’ property is the joint family property of the plaintiff and defendants 1 to 4. Lot Nos.2 and 3, which are agriculture properties were also inherited by the plaintiff and defendants 1 to 4 and during the major settlement, the suit land was jointly recorded in their name. On a compromise petition being filed on 01.03.1997 in presence of the plaintiff and defendants 3 and 4 and in presence of the counsel holding special power on behalf of the defendants 1 and 2, the said compromise was admitted and a decree was passed making the terms of compromise a part of the said decree. While the matter stood thus, the petitioner, who was defendant No.2 in the said suit, filed an application under Order – 23, Rule – 3 C.P.C. to set aside the compromise decree dated 01.03.1997 passed in the suit, on the ground of fraud and misrepresentation. 3. The said petition was registered as Misc. Case No.121 of 1997. Notice of the Misc. Case was issued to the plaintiff and other defendants in the suit. On service of notice, except the plaintiff, who was opposite party No.1 in the Misc. Case, none of the other parties appeared before the court below. 4. The plaintiff filed an objection to the Misc. Case petition, wherein, while stating that the petition is not maintainable, she stated that she did not file T.S. No.695 of 1995 or any other suit as plaintiff. She also stated that the property is still joint and has not been divided between the co-sharers and she has no knowledge about filing of the partition suit nor the compromise entered into. 2 5. The petitioner examined himself as a witness and the plaintiff-opposite party No.1 in the Misc. Case also examined herself giving the same statement, as was given in her objection. The ground taken in the Misc. Case under Order – 23, Rule – 3 C.P.C. was that the petitioner, who was defendant no.2 in the suit, was residing at his place of service away from his native place and no notice/summon whatsoever of the suit was served on him. It was his further case that he has neither appeared in the said suit nor signed the compromise petition and he has also not signed any Vakalatnama giving any special power to his counsel for admitting in the compromise. It appears that the plaintiff-opposite party No.1 subsequently has filed another suit for partition, being, O.S. No.7 of 2003 as plaintiff. 6. The learned trial court in the impugned order observing that the petitioner has not taken any steps for comparison of his signatures appearing in the compromise petition as well as the Vakalatnama with his admitted signatures, has not discharged the onus of proving that the compromise was an out-come of fraud. The learned trial court further coming to the conclusion that the petitioner was required to establish his case and cannot take advantage of the weakness in the evidence of the opposite parties, even though the plaintiff-opposite party no.1, who is the mother of the petitioner stated that she had no knowledge of filing of the suit nor any knowledge with regard to the compromise. It was further observed by 3 the learned trial court that the plaintiff - Smt. Jamuna Das has also failed to prove that her L.T.I. appearing in the plaint, Vakalatnama and compromise, was not her L.T.I. On these grounds, the learned trial court rejected the application of the petitioner to set aside/recall the compromise decree. 7. It is a well settled principle of law that the facts admitted need not be proved. It is also an admitted position that in spite of issuance of the notice of the Misc. Case filed by the petitioner, none of the other opposite parties chose to appear in the said Misc. Case and object to the prayer made by the petitioner. 8. In view of the admission of the plaintiff – opposite party No.1 that she had no knowledge with regard to filing of the suit nor the compromise entered into, the learned trial court has committed an error in holding that in spite of such admission, the petitioner was required to prove that his alleged signatures appearing in the compromise petition as well as the special power given in favour of his counsel did not belong to him and were forged. In such circumstances, it was incumbent upon the learned trial court to set aside the compromise decree, more so, when admittedly the opposite party No.1, who was plaintiff in the suit having asserted that she had no knowledge with regard to filing of the suit or the compromise petition and has filed a fresh suit for partition. 4 9. In view of the above, the writ application is bound to succeed and the impugned order passed by the learned trial court in Misc. Case No.121 of 1997 on 05.11.2005 is to be set aside. Ordered accordingly. However, the learned trial court, while proceeding with the said suit, being, T.S. No. 695 of 1995, is required to examine, as to whether, the plaintiff - Smt. Jamuna Das has really filed the said suit or not or as she claims that she has not filed the said suit, should take steps for examining whether the said plaintiff - Smt. Jamuna Das has put her signature in the plaint and if so, under what circumstances. 10. This issue with regard to maintainability of the suit shall be decided along with the other issues, if found to have been raised from the written statements filed by the other defendants if any. The petitioner shall also be afforded with an opportunity to file his written statement taking all such pleas, as he so chooses. The learned trial court shall proceed with T.S. No. 695 of 1995, in the event, O.S. No.7 of 2003 said to have been subsequently filed, has not been disposed of in the meantime. 11. With the aforesaid observations and directions, the writ application stands allowed. ……………………. M. M. Das, J. Orissa High Court, Cuttack. 5 October 25th, 2011/Subha. 6 7 8