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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Auqib Qadir & Anr. - Petitioners
Versus
Abdul Aziz Sofi - Respondent
CR No. 46 of 2005
Decided On : 01-09-2023
Revisional Jurisdiction - Property Dispute - Order 23 Rule 3 of CPC - Order 12 Rule 6 of CPC - Minor Defendant - Guardian Appointment - Compromise Decree - Unlawful Agreement - Public Policy
Fact of the Case:
The petitioner invoked the revisional jurisdiction of the court to challenge orders allowing recall of a compromise decree. The suit involved a property dispute where minors sought a declaration of ownership and a permanent injunction. A compromise deed was submitted, and a decree was passed in favor of the minors. The respondent later sought recall of the compromise, alleging coercion and pressure exerted by the minors' father. The trial court allowed the recall, setting aside the compromise deed and decree.
Finding of the Court:
The court found that the appointment of the minors' father as their guardian, though procedurally irregular, did not vitiate the proceedings as the interests of the minors were properly represented. The court also held that the decree was passed in accordance with Order 23 Rule 3 of CPC, and the challenge to the compromise decree by the respondent was maintainable. The evidence presented by the respondent was found to be consistent with his pleadings, and the court concluded that the compromise was unlawful and against public policy.
Issues: The issues involved the appointment of a guardian for the minor defendants, the maintainability of the recall application, the evidence presented by the respondent, and the legality of the compromise agreement.
Ratio Decidendi: The court held that procedural irregularities in the appointment of a guardian do not vitiate proceedings if the interests of the minors are properly represented. It also determined that the challenge to the compromise decree was maintainable under Order 23 Rule 3 of CPC. The court found the evidence presented by the respondent to be consistent with his pleadings and concluded that the compromise was unlawful and against public policy.
Final Decision: The court dismissed the petition, upholding the trial court's decision to set aside the compromise decree. It found no illegality or irregularity in the trial court's order.
JUDGMENT :
1. The petitioner has invoked the revisional jurisdiction of this Court to call into question orders dated 12.04.2005 and 16.04.2005, passed by learned Sub Judge, Shopian, whereby application of the respondent seeking recall of compromise decree dated 26.12.1996 has been allowed and the aforesaid decree has been set aside.
2. It appears that the petitioners (minors) through their father had filed a suit against the respondent before the Court of learned Sub Judge, Shopian (hereinafter referred to as “the trial court”) seeking a declaration that they are owners in possession of land measuring 01 marlas falling under Survey No.761/532 and 02 marlas falling under Survey No.871/532 along with one storey concrete residential house situated at Hergam (Bona Bazar), Shopian, with a decree for permanent injunction restraining the defendant from interfering into their peaceful possession over the aforesaid property. It was claimed in the suit by the petitioners/plaintiffs that the property in question has been gifted away by respondent/defendant in their favour by way of an oral gift pursuant to which they have taken over possession of the suit property. It seems that during pendency of the suit, a compromise deed was submitted by the parties before the trial court on 26.12.1996. In terms of the compromise deed, the respondent/defendant had accepted the ownership rights of the plaintiffs and had undertaken not to interfere into their peaceful possession over the property in question. It was provided in the compromise deed that the suit property had been orally gifted by the defendant to the plaintiffs a few months prior to the said deed. The learned trial court passed decree dated 26.12.1996 on the basis of the compromise arrived at between the parties thereby declaring the plaintiffs/petitioners as owners in possession of the property in question.
3. On 24.07.1997, the respondent/defendant filed an application under Order 23 Rule 3 of CPC before the trial court seeking recall of compromise deed and setting aside of compromise decree dated 26.12.1996 on the grounds that he had signed the compromise deed on the basis of coercion and pressure exerted by father of the petitioners/plaintiffs upon him. It was averred in the application that the mother of the petitioners died a natural death in the month of October, 1996 but Shri Gh. Qadir Sofi, father of the petitioners, who was having family dispute with the respondent/defendant, in order to take revenge concocted a false and frivolous case against him, as a consequence whereof, the respondent/defendant was implicated in a case relating to murder of mother of the petitioners. It was further averred in the application that the respondent was harassed by the father of the petitioners/plaintiffs, who asked him to surrender ownership and possession of the suit property to save himself from the harassment. According to the respondent, he succumbed to the pressure and signed the papers relating to compromise deed as also the vakalatnama. In the compromise deed it was recorded that he had gifted away his house in favour of the petitioners. It was further averred that after the compromise decree was passed, Shri Gh. Qadir Sofi, father of the petitioners, appeared before the Court of learned Chief Judicial Magistrate, Shopian, and got his statement under Section 164 of Criminal Procedure Code recorded, in which he stated that his wife had died a natural death thereby exonerating the respondent. It was pleaded by the respondent that he had never gifted away the property in question in favour of the petitioners nor had he voluntarily signed the compromise deed but the same was executed by him under duress in order to save himself from the criminal prosecution.
4. The application was resisted by the petitioners by filing a reply thereto. In their reply, the petitioners submitted that the respondent had executed the compromise deed out of his free will. It was further submitted that the responden
The main legal point established is that a compromise agreement based on an unlawful consideration, such as the promise not to prosecute for a non-compoundable offence, is unenforceable and against p....
The main legal point established in the judgment is that a compromise deed, once recorded by the court, is lawful and binding, and a subsequent suit challenging the compromise decree is not maintaina....
The main legal point established in the judgment is that the original Petitioner's conduct amounted to an abuse of the due process of law, and the filing of the Writ Petition challenging the compromi....
Compromise decrees in partition suits involving minors without their inclusion are void and can be challenged based on coercion or lack of lawful procedure.
(1) Breach of compromise – Only remedy available to aggrieved party is to approach court that recorded compromise under proviso to Order 23, Rule 3 of CPC.(2) When there is a statutory remedy availab....
Consent and subsequent conduct of the party can validate a compromise even if the party did not sign the compromise.
The main legal point established in the judgment is that the consent of all parties to the compromise memo is required for its amendment, and the amendment sought must fall within the scope of Sectio....
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