1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7692 OF 2009 1 Girish s/o Hanmantrao Patil, age: 46 years, Occ: Service, R/o Degaon Road, Degloor. 2 Sanjay s/o Hanmantrao Patil, age: 43 years, Occ: Service, R/o Degaon Road, Degloor, District Nanded. Petitioners Versus 1 Nagabai w/o Datta Bangarwar, age: 71 years, Occ: Household; 2 Gangadhar s/o Datta Bangarwar, age: 41 years, Occ: Agril., 3 Gangaram s/o Datta Bangarwar, age: 39 years, Occ: Agril., All R/o Degloor, District Nanded. Respondents Mrs.M.D.Thube-Mhase, advocate for petitioners. Mr. U.B.Bilolikar, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 26 th August, 2010. PER COURT: 2 1 An application tendered by the petitioners – original Respondents No.1 and 2 in Misc. RJE No.19/2008, objecting to the tenability of the application presented by Respondents herein under Order XXIII Rule 3 and under Section 151 of the Code of Civil Procedure has been turned down by the trial Court and said order passed below Exhibit-20 in Misc. RJE No.19/2008, is subject matter of challenge in this petition. 2 It is not necessary to go into the factual details of the matter for the purpose of deciding the controversy involved in this writ petition. Suffice it to say that the suit bearing RCS No. 130/2004 was decided in terms of the compromise arrived at between the parties thereto. It further transpires that decree in terms of compromise was recorded by the trial Court while dealing with Regular Civil Suit No.130/2004. Respondent – Nagabai, who is mother of deceased Laxdman, who was party to the settlement, is challenging the compromise by invoking provisions of Order XXIII Rule 3 and Section 151 of the Code of Civil Procedure. 3 Petitioners herein – Respondents in the application have objected to the tenability of the application on several grounds. It is contended that the application tendered by Nagabai cannot be entertained, firstly because she was not party to the compromise or even was not party to the suit, being RCS No. 130/2004, wherein compromise was recorded and in pursuant thereto, decree came to be passed. It is contended that on 3 consideration of the provisions of Order XXIII Rule 3, challenge to the compromise can be raised only by a party to the suit. Another objection raised is as regards tenability of the application which contains the allegation in respect of fraud, undue influence or misrepresentation made by the petitioners while securing compromise decree. It is contended that when allegations of fraud are made, the only remedy available to the aggrieved party is to present independent suit and the allegations in respect of fraud or misrepresentation cannot be investigated in an application tendered under Order XXIII Rule 3 of the Code of Civil Procedure. The inquiry in an application shall be limited only in respect of the para meters laid down in the proviso to Rule 3, “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”. It is also contended that the application ought to be presented at the time of recording of compromise and not at a later point of time. It is also contended that once decree in terms of compromise is recorded, recourse to provisions of Rule 3 Order XXIII is impermissible and only remedy is either to file an appeal or to present independent suit. 4 Learned Counsel appearing for the Respondents has supported the order passed by the trial Court placing reliance on the judgment of the Apex Court in the matter of Banwari Lal Vs. Smt. Chando Devi, reported in AIR 1993 SC 1139. 4 5 I have perused the judgment in the matter of Banwari Lal (supra). On perusal of the said judgment, it transpires that remedy is available to the party either to present an application under Order XXIII Rule 3 or to file an appeal under Section 96(1) of the Code of Civil Procedure. The relevant observations can be quoted as below: “A party challenging a compromise can file a petition under proviso to Rule 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.” 6 So far as the argument advanced by learned Counsel for petitioners that Nagabai, who presented application, was not party to the earlier suit and was also not party to the compromise, as such, she cannot present an application as contemplated under Rule 3 Order XXIII of the Code of Civil Procedure, is concerned, on perusal of the application, it transpires that Nagabai has presented the application in her capacity as legal heir of deceased Laxman, who was admittedly party to the compromise as well as to the earlier suit. Thus, in the capacity of representative of Laxman, application at the instance of Nagabai could be entertainable. 7 So far as the contention raised by the petitioners that application contains the allegations in respect of fraud having been committed by the petitioners herein and as such, those cannot be investigated taking recourse to proviso to Rule 3 of Order XXIII of 5 the Code of Civil Procedure, reliance is placed on the judgment in the matter of Keshav s/o Dattaram Vs. Yamunabai w/o Nagoba, reported in 1986 (1) Bom.C.R. 81 and more specifically observations made in para 17 of the judgment, which can be quoted thus: “The only thing which the Court has to see under Rule 3, Order 23 of the Code of Civil Procedure is whether (a) there could be an adjustment or compromise and (b) whether such adjustment or compromise is lawful. Once these two needs are established as they are established in this case, the further challenge on the ground of fraud and undue influence or misrepresentation or the agreement is otherwise vitiated on such other similar grounds must be left to be decided by an independent suit and no investigation is contemplated in view of the clear provisions of Rule 3, Order 23.” 8 In exercise of powers under Article 227, while considering the controversy involved in the matter, it would not be necessary to go into the factual details. It would be for the trial Court to consider the pleadings and deal with the objections, if any, raised by the parties to the proceedings. It is left open for the trial Court to decide the objection as regards permissibility to cause interference in the application in exercise of powers under Rule 3 Order XXIII of the Code of Civil Procedure. 9 Learned Counsel for the petitioners has also 6 contended that the objections raised in the application presented by Respondents are in respect of commission of fraud having been played by the petitioners herein while securing the order from the trial Court on the basis of compromise. It is contended that the allegations of fraud are essentially based on personal knowledge and in the absence of deceased party, it would not be permissible for the applicant to agitate the grievance in that regard. 10 The objection raised is touching the merits of the controversy and same can be agitated before the trial Court and the trial Court, while dealing with the application, would be obliged to take into account all the objections, those would be raised by the applicant. 11 Learned Counsel appearing for the petitioners, placing reliance on the judgment of the Apex Court in the matter of Sneh Gupta Vs. Devi Sarup and others, reported in 2010 (1) Mh.L.J. 293, has contended that the application tendered by original applicants/ respondents herein could not be entertainable and the remedy available, in the facts and circumstances, would be only to present a suit and it would not be permissible for the trial Court, dealing with the application, to probe into the question of fraud, undue influence or misrepresentation. 12 It would be open for the petitioners to agitate the issue, based on the interpretation of the judgment of the Apex 7 Court, before the trial Court and the trial Court, on consideration of the arguments, those would be advanced by the petitioners, may pass appropriate orders. 13 In view of the reasons recorded above, no interference is called for at this stage. 14 Writ Petition, therefore, stands rejected. (R.M.BORDE) JUDGE ******* adb/wp769209a