IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.522 of 2010 1.Vishwa Mohan Kumar Choudhary, Son of Late Ram Chandra Choudhary. 2.Harish Chandra Choudhary, Son of Late Tara Nand Choudhary. 3.Ram Udar Chaudhary. 4.Arun Kumar Chaudhary. Both Sons of Late Ram Kripal Chaudhary. 5.Birendra Narayan Choudhary, Son of Late Yugal Kishore Choudhary. 6.Braj Kishore Chaudhary, Son of Late Anant Narain Chaudhary. 7.Upendra Chaudhary. 8.Ramashray Chaudhary. Both Sons of Late Babu Narain Chaudhary. All are residents of Village- Nadiami, P.S.-Sakatpur, District- Darbhanga. -----Defendants-Ist parties/Petitioners. Versus 1.Yatindra Narayan Choudhary (Retired Major) Son of Late Hriday Narain Choudhary, R/o Village- Nadiami, P.S.- Sakatpur, District- Darbhanga. ---------Plaintiff/Opposite Ist Party. 2.Jagdeo Choudhary @ Jagdeo Narain Choudhary, Son of Late Rameshwar Choudhary. 3.Rajeshwar Choudhary. 4.Ratneshwar Choudhary. 5.Mangal Prasad Choudhary. 2 Both Sons of Late Ram Pukar Choudhary. 6.Ram Bilash Choudhary, Son of Late Ramanand Choudhary. 7.Upendra Narain Choudhary, Son of Late Chandra Bhushan Choudhary. All Sl. 2 to 7 are R/o Village- Nadiami, P.S.-Sakatpur, District- Darbhanga -----Defendants Ist party/Opposite 2nd Parties. 8.Yogendra Narain Choudhary. 9.Mahendra Narain Choudhary. 10. Rabindra Narain Choudhary. Sl.No.8 to 10 Sons of Late Hriday Narain Choudhary. 11. Most. Ramjani Choudhary, Widow of Late Hriday Narain Choudhary. All Sl.No. 8 to 11 are R/o Village- Nadiami, P.S.- Sakatpur, District- Darbhanga. -------Defendants 2nd Parties/ Opp.3rd Parties. ----------Opposite Parties. For the petitioners: Mr.Anil Kumar Jha, Sr.Advocate. Mr. Durga Nand Jha, Advocate. Mr. Prashant Ekram, Advocate. For the Opp.Parties: Ashok Kumar Mishra, Adv. Anjani Kumar Choudhary, Adv. Amit Kumar Mishra, Adv. Ram Padarath Singh. ----------- 7. 07.12.2011 Heard the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of the opposite parties. 3 1. This civil revision application has been filed against the order dated 23.04.2010 passed by Sub Judge IV, Darbhanga in Title Suit No.103/91 dismissing the petition dated 05.09.2009 by the defendant petitioners praying to dismiss the suit. 2. The plaintiffs-opposite party has filed Title Suit No.103/1991 for declaration that the compromise decree dated 12.03.1948 passed in Title Partition Suit No. 104/1946 is illegal and void as having been obtained by practising fraud and the relief for partition of the entire suit property has also been sought. Admittedly, there had been earlier suit for partition bearing Title Partition Suit No. 104/1946 which had been disposed of in terms of a compromise filed between the parties thereto. Thereafter in the year 1991, the present suit i.e. Title Suit No.103/1991 has been filed for the above mentioned reliefs. It is not in dispute that the written statement in the suit has been filed in the year 1992 itself and thereafter the issues have been framed and hearing of the suit has commenced and the examination-in-chief of the plaintiff has been done on 28.08.2009. Thereafter, the defendants filed the petition under Order 7 Rule 11(d) C.P.C. praying for rejection of the plaint. By the impugned order, the 4 learned court below has dismissed the said petition and thereafter the present revision application has been filed. 3. It has been submitted on behalf of the petitioners that in view of the provision of Order 23 Rule 3A the suit challenging the compromise decree is not maintainable and the learned court below has committed error of jurisdiction in rejecting the petition filed by the defendants in view of the aforesaid provision. However on behalf of the opposite parties it has been contended that the petition filed by the petitioners praying for rejection of the plaint is misconceived in the facts and circumstances of the case. It has been further pointed out that the petitioners have earlier moved before this Hon’ble Court in C.R.No.905/1992 and this Hon’ble Court by order dated 12.11.1992 had issued direction to the court below to decide the suit itself preferably within six months and this fact has been suppressed by the petitioner in the revision petition. The learned counsel on behalf of the plaintiff-opposite party has also urged that the petitioners have filed the present petition after lapse of more than 17 years from the date of aforesaid direction of this Court. Particularly, when the hearing of the suit has reached to an advanced stage and as such the lack of 5 bona fide on the petitioner is self-explicit. 4. After hearing the submissions of the parties and perusal of the impugned order it becomes clear that the suit has been filed for declaration that the compromise decree is not binding upon the plaintiff mainly on the ground that the plaintiff was minor when he had been substituted in Title Partition Suit No.104/1996 in place of his deceased father and had been placed under the guardianship of his brother who was himself a minor at that time. The mother of the plaintiff was not substituted and the plaintiff had not been placed under her guardianship. The plaintiff has further come out with the case that his elder brother was not the Karta of the family nor could have acted as guardian of the plaintiff and the compromise decree had thus been obtained by practicing fraud upon the Court and is nullity in the eye of law. 5. It is well settled that a petition praying for rejection of plaint on any of the grounds mentioned in Order 7 Rule 11 C.P.C. is to be decided on the basis of the averments made in the plaint and no other material can be looked into for the said purpose. The plaintiff has sought the relief against the compromise decree on the ground that he 6 had been a minor when the compromise decree was passed and had not been represented by his guardian and as such he would not be legally deemed to be a party to the compromise petition. These facts if established by the plaintiff will certainly entitle him to a declaration that the alleged compromise decree will not be binding upon him. From the impugned order itself, it appears that an issue in this regard has already been framed in the suit. 6. Further by order dated 12.11.1992 passed in C.R.No.905/1992 field by the present petitioners there has been a clear direction to the court below to decide the suit itself within a period of six months. At that time, the petitioners did not raise the objection regarding the maintainability of the suit itself and in fact they have accepted the said order. Later on this Court while considering the prayer of the petitioners for stay of further proceeding of the suit again took notice of the order dated 12.11.1992(Supra) and has rejected the prayer for stay holding that due to delaying tactics of the parties the suit has remain pending till date. Moreover, by the impugned order, the court below has not determined the objection of the defendants rather has only held that the same shall be 7 decided at the time of disposal of the suit. 7. In view of the abovesaid discussions, it is clear that the petitioners have not acted fairly in getting the disposal of the suit delayed in spite of the direction of this Court, issued 19 years back in another revision application filed by the petitioners themselves. The petitioners will not suffer any prejudice as the objection to the maintainability of the suit has been kept alive by the impugned order to be decided at the time of disposal of the suit. 8. Thus, it is held that substantial justice has been done by the impugned order and no interference by this Court is required. This civil revision application is, accordingly, dismissed. The learned court below however, is directed to decide the suit expeditiously preferably within six months from the date of receipt of this order. It is made clear that this court has not gone into the merits of the cases of the rival parties and any observations made in this order shall not prejudice the cases of the parties in any manner. Nitesh ( V. Nath, J.)