A suit to challenge a compromise decree on the ground of fraud or misrepresentation is maintainable under Order 23, Rule 3-A of the Code of Civil Procedure.

Arun Kumar Goel, J.—This is plaintiffs revision against the order dated 29th March, 1996 whereby the suit for declaration and perpetual injunction filed by the petitioner, hereinafter referred to as plaintiff, against the respondent, hereinafter referred to as defendant, has been ordered to be returned under Order 7, Rule (II) (d) of the Civil Procedure Code.

2. Brief facts giving rise to this case are that earlier suit No. 202-1 of 1992 was filed by the defendant against the plaintiff. This case was listed on 5-11-1992, an application was filed on 29-9-1992 for preponement of the said suit and deciding it since the matter has been compromised between the parties. Accordingly, the said suit was preponed from 5-11-1992 to 29-9-1992 and a compromise decree was passed. And, before passing the compromise decree in the suit, statements of the parties were recorded by the trial Court and written compromise was also taken on record, which was marked as Ext. CA and in term thereof Liaq Ram was declared as owner in possession of the suit land comprised in Khasra Nos 1775/129 and 1787/516, Kita 2 measuring 4.8 Bighas, situated in Chak Ratnari, Tehsil Theog, District Shimla, H. P, and the revenue entries to the contrary were held wrong and illegal.

3. The aforesaid compromise decree was challenged by the plaintiff to be the result of fraud and misrepresentation having been practised by the defendant upon him. It was a time when he was in bad state of health and the document which was filed as compromise had been held out to be a Will executed by the plaintiff in favour of Liaq Ram, defendant. In these circumstances, declaration was sought that the judgment and decree passed in Civil Suit No 202-1 of 1992 dated 29-9-199,4 is null and void and is not binding on the plaintiff. Further, decree for perpetual injunction was also prayed for.

4. In this case pleadings are complete. However, when the matter came up before the trial Court, by means of impugned order it was held that the present suit wherein compromise decree in Civil Suit No, 202-1 of 1992 in case titled Liaq Ram v. Dhan Sukh, is challenged was not maintainable and accordingly the plaint was ordered to be rejected under Order VII Rule 11 (d) of the Code of Civii Procedure. It is this order, which is assailed by the plaintiff in the present case.

5 Mr Bhupender Gupta, learned Counsel appearing for the plaintiff, has urged that unless the matter was put to issue by the trial Court, simply on the basis of Order 23, Rule 3-A of the Code of Civil Procedure his client could not have been thrown out Further it was pointed out that a compromise decree in order to be binding has to be shown to be according to law. The question of the compromise being lawful or not could only be determined after going into the said question. Mr. Gupta further pointed out that he has no other remedy except by way of filing the present suit, whereas on the other hand, Mr. Jagdish Vats, learned Counsel for the defendant has submitted that the compromise decree was lawful and no infirmity has been pointed out for holding that the same is unlawful within the meaning of Contract Act and as such the challenge made by the plaintiff in this behalf is not at all sustainable.

6. I have gone through the records of the case and have also hear learned Counsel for the parties.

7. Mr. Bhupender Gupta, learned Counsel for the plaintiff has placed reliance on certain decisions to which reference is being made now.

8. In Syed Shah Gulam Ghous Mohiuddin Khamesul Qadri and others v. Syed Shah Abdul Hat Khamisul Qadri and others, AIR 1959 AP 212, it was observed that a suit to set aside decree on the ground of fraud is not purely a question of law, but involves a mixed question of law and fact and no finding can be given without giving opportunity to lead evidence. Unless an opportunity is given, this question cannot be gone into.

9. In Kewal Krishan v. Shiv Kumar and others, AIR 1970 P & H 176, a Division Bench of that Court h