IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 295 of 2000. Date of decision: 4.5.2010. Netar Mani alias Trinetra Kumar ….. Appellant. Vs. Sohan Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mrs. Jyotsna Rewal Dua, Advocate. For the Respondents : None. Kuldip Singh, Judge (Oral). The appellant has lost in both the courts below and he has filed the second appeal against judgement, decree dated 4.4.2000 passed by learned District Judge, Sirmour District at Nahan in Civil Appeal No. 105-CA/13 of 1999 affirming the judgement, decree dated 5.11.1999 passed by learned Senior Sub Judge, Sirmour District at Nahan in Civil Suit No. 57/1 of 1996. 2. The facts in brief are that appellant had filed a suit for declaration that respondents had mis-represented in the suit and the compromise dated 23.4.1994 is voidable and as such stands rescinded. The appellant has every right to recover 6 biswas of land depicted by khasra No. 12/1 from respondents qua which he had filed Civil Suit No. 74/1 of 1991. It has been prayed that said suit may be restored and a decree for possession of 6 biswas as prayed for in Whether the reporters of the local papers may be allowed to see the Judgment? …2… Civil Suit No. 74/1 of 1991 may be passed in favour of the appellant and against the respondents. 3. The suit was contested by the respondents and they have taken preliminary objections of maintainability, estoppel, locus- standi, res judicata and the appellant has not approached the court with clean hands. The respondents have denied the claim of the appellant. The appellant filed replication in which stand of the respondents was controverted and stand taken by the appellant was reiterated. On the pleadings of the parties the following issues were framed:- 1. Whether the compromise dated April 23, 1994 effected before the LOK Adalat at Nahan is the result of fraud, as alleged? OPP. 2. Whether Civil Suit titled Nater Mani Vs. Sohan Singh and others (C. Suit No. 74/1 of 1991) deserves to be restored, as alleged? OPP 3. Whether the plaintiff is entitled to a decree of possession of the suit land measuring 6 Biswas, as alleged? OPP. 4. Whether the suit is not maintainable in the present form, as alleged? OPD. 5. Whether the plaintiff is estopped from suing by his act and conduct of acquiescence as alleged? OPD. 6. Whether the plaintiff has no locus-standi to sue, as alleged? OPD. 7. Whether the suit is hit by the principles of res judicata, as alleged? OPD. 8. Whether the plaintiff has no cause of action as alleged? OPD. 9. Relief. …3… 4. The issues No. 1 to 3 were answered in the negative, issue No. 5 in affirmative, issues No. 4, 6, 8 were held to be redundant, issue No. 7 was not pressed. The suit was dismissed by the learned Senior Sub Judge on 5.11.1999. In appeal, the learned District Judge on 4.4.2000 affirmed the judgement, decree dated 5.11.1999. In these circumstances, second appeal has been filed, which has been admitted on the following substantial questions of law:- 1. Whether the learned courts below erred in law in not restoring the suit of the plaintiff/ appellant when the courts below themselves gave a finding that the compromise decree dated 23.4.1994, on the basis of which the suit was withdrawn was vague and unexecutable. 2. Whether the ld. Courts below were justified in law in overlooking the fact that when the defendants had not complied with his part of the compromise, it was neither legal not equitable to force the plaintiff to keep up his part of the compromise. 5. I have heard Mrs. Jyotsna Rewal Dua, learned counsel for the appellant and have also gone through the record. It has been submitted on behalf of the appellant that the courts below have erred in not restoring the suit when they have themselves recorded a finding that compromise decree dated 23.4.1994 on the basis of which suit was withdrawn was vague and unexecutable. She has submitted that respondents have not complied with their part of compromise. It was neither legal nor equitable to force the appellant …4… to comply with his part of the compromise. The compromise decree requiring exchange of lands in the facts and circumstances of the case is a nullity. It impliedly snatched away 6 biswas of land of the appellant. 6. The substantial question of law No. 1 is taken up first. Rule 3-A of Order 23 CPC provides that no suit shall lie to set-aside a decree on the ground that the compromise on which the decree is passed was not lawful. The prayer in the suit filed by the appellant is for restoration of Civil Suit No. 74/1 of 1991, which was withdrawn by the appellant. The Supreme Court in Banwari Lal vs. Smt. Chando Devi (through L.R.) and another AIR 1993 SC 1139 has held that a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23 or an appeal under Section 96(1) of the Code in which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code. In the plaint vague plea of fraud has been taken. The plea is that tatima of land was not filed at the time of compromise. The issue No. 1 of fraud has been decided against the appellant. In these circumstances, the suit of the nature filed by the appellant is not maintainable. The remedy, if any, before the appellant was to file an application or an appeal to agitate his grievance before the appropriate court. In these circumstances, the substantial question of law No. 1 is decided against the appellant. 7. In view of my findings that suit of the nature filed by appellant is not maintainable, the substantial question of law No. 2 requires no determination and thus stands disposed of accordingly. …5… 8. No other point has been urged. 9. The result of above discussion, the appeal fails and is accordingly dismissed. May 4, 2010. ( Kuldip Singh ) (Hem) Judge.