The main legal point established is the applicability of Section 26 of the Specific Relief Act in cases of mutual mistake and the validity of compromise under Order 23 Rule 3 of C.P.C.

JUDGMENT :

Biswanath Rath, J.

1. This Civil Misc. Petition involves a challenge to the order dated 16.12.2013 passed in C.S. No.604/2013 by the Civil Judge (Sr.Divn.), Puri thereby refusing to accept a compromise between the parties under Order 23 Rule 3 of C.P.C. to conclude the suit in the terms and conditions stated therein.

2. Short background involved in the case is that the petitioner as plaintiff making opposite party as defendant filed a suit for declaration as follows :-

“(a). Let it be declared that as per sale deed bearing no.1531300637, dt-8.3.2013, no consideration amount was passed to plaintiff and that document may be treated as a Gift deed instead of sale deed.

(b). Cost of the suit be awarded in favour of the plaintiff.

(c). Any other relief/s as deed fit and proper be awarded in favour of the plaintiff.”

Upon receipt of notice, sole defendant on its appearance, both the parties filed a compromise petition under Order 23 Rule 3 of C.P.C. with joint affidavit and the sole defendant while admitting the plaint claim indicated therein to go for amicable settlement and in the event the plaintiff’s suit is decreed, then the defendant also expressed that it will have no objection for the same. For the agreement between the parties for their being no dispute between them on the request made in the suit, the joint application under Order 23 Rule 3 of C.P.C. was filed by both the plaintiff and defendant praying therein as follows :-

“TERMS AND CONDITIONS

(a). Let the deed bearing no.1531300637, dt- 8.3.2013, be treated as a document of Gift and no consideration was passed in favour of the plaintiff.

(b). Defendant by strength of that document can also mutate his names before the concerned authority, wherein the plaintiff will have no objection.”

Hearing the joint application and considering the rival contentions, the trial court rejected the application by the impugned order and posted the case to the next date directing the defendant to file its written statement. It appears, in the meantime, the defendant has already filed written statement while accepting the plaint claim clearly disclosing that it intends to go for amicable settlement also submitting therein that it has no objection in the event the plaintiff’s suit is decreed.

3. Assailing the impugned order, Sri S.K.Dash, learned counsel for the petitioner not only applied a wrong ratio of the Hon’ble Supreme Court to the case at hand but failed in appreciating the purpose behind Section 26 of the Specific Relief Act. Similarly, there is also failure of appreciation of the provisions contained in Section 23 of the Indian Contract Act. It is also contended that following the principle contained in Section 26 of the Specific Relief Act permitting initiation of suit for rectification of the instrument in the event of mutual mistake of the parties. It is thus submitted by Sri Dash that the impugned order is an outcome of failure of appreciating the provisions of law indicated herein above, wrong consideration of the decision of the Hon’ble apex Court taken note in the impugned order and also the settled position of law as passed by various courts.

Under the premises, Sri Dash, learned counsel for the petitioner prayed this Court for interfering with the impugned order and setting aside the same and further granting appropriate relief to the petitioner.

4. Sri A.B.Lenka, learned counsel for the opposite party, on his no objection to the request for decree involving the suit made a fair statement that for involvement of a joint application under the provision under Order 23 Rule 3 of C.P.C., the trial court was bound to accept the same and close the suit recording the compromise.

5. Considering the rival contentions of the parties, this Court finds, looking to the relief sought for and the facts mentioned in the joint application under Order 23 Rule 3 of C.P.C. and further taking into consideration the terms and conditions agreed to therein by both the parties and the prayer therein,