Back
2008(1) LAW HERALD (P&H) 154
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Permod Kohli
RSA No.1329 of 1985
Shanti Devi (dead) represented by LR
v.
Gian Chand
{Decided on 17/09/2007}
(A) Civil Procedure Code, 1908, Section 100—Second Appeal—Entitlement to seek appropriate remedy—Plaintiff appellant has been non suited purely on a legal question—Plaintiff contested the suit and earned judgment on merits against himself— It is for the appellant-plaintiff to seek any appropriate remedy available to her under the law if there is no legal impediment and it is for the concerned Court/Authority/Forum to consider the effect of judgments and decrees of the learned Courts below. (Para 7)
(B) Civil Procedure Code, 1908, Order 23, Rule 3-A—Bar to a suit—Challenge to compromise decree dated 31-8-1979 on the ground of fraud coercion and misrepresentation etc—Suit come to be filed on 6.12.1979—Rule 3-A of order 23 of the Civil Procedure Code, 1908 had already been brought on the statute Book—Suit filed by the appellant was, held, not maintainable. (Para 5)
(C) Civil Procedure Code, 1908, Order 7, Rule 10—Return of plaint—Challenge to compromise decree by a separate suit—The Court lacks inherent jurisdiction to entertain of lis—Order 7, Rule 10 Civil Procedure Code, 1908, held not applicable. (Para 6)
(D) Civil Procedure Code, 1908, Order 23, Rule 3 A—Question of maintainability of the suit—No objection from the other side—Suo motu notice by the High Court—Held; The Court has the jurisdiction and competence to raise the question of maintainability of the suit even in the absence of any plea by the parties concerned. (Para 4)
(E) Civil Procedure Code, 1908, Order 23, Rule 3-A—Bar to a suit—Consent decree—Setting aside of—Challenge to compromise decree--Maintainability of the suit—Court has the jurisdiction and competence to raise the question of maintainability of the suit even in the absence of any plea by the parties concerned. (Para 5)
(F) Civil Procedure Code, 1908, Order 23, Rule 3-A—Bar to a suit—Consent decree—Setting aside of—Challenge to compromise decree--Maintainability of the suit—In terms of explanation to Rule 3 of Order 23 of the Code of Cviil Procedure, an agreement or compromise, which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule. Its natural corollary is, if any compromise is entered into between the parties, it must satisfy the requirements of a valid contract. Fraud, coercion, mis-representation etc. vitiate the transaction and, thus, the contract entered into between the parties ceases to be a lawful. It is settled proposition that a compromise is a contract/agreement between the parties.
(G) Civil Procedure Code, 1908, Order 23, Rule 3-A—Bar to a suit—Consent decree—Setting aside of—Challenge to compromise decree--Maintainability of the suit—When it is presented in the Court, in any suit or proceedings and the Court is called upon to accept the compromise and pass consequential order, the Court merely takes on record the agreement of the parties and satisfies itself regarding the voluntary nature of such a compromise. If any of the parties later on assails the compromise as invalid on account of exercise of fraud, coercion, misrepresentation etc. and pleads that the compromise/agreement was unlawful and involuntary, such a compromise cannot be challenged by a separate suit in view of the clear Bar created by Rule 3-A of Order 23 of the Code of Civil Procedure. (Para 5)
Permod Kohli, J.:-This Regular Civil Second Appeal arises out a of a suit for declaration challenging a compromise decree dated 31.08.1979 passed by the learned Sub Judge IInd Class, Jagadhri, in Civil Suit No.203 of 1979, titled Gian Chand Vs. Smt. Shanti. The compromise decree referred to above, has been challenged on the ground of fraud, coercion, misrepresentation etc. The learned trial Court vide its judgment and decree dated 07.08.1982, dismissed the suit filed by the plaintiff-appellant. The learned Lower Appellate Court vide its judgment and decree dated 22.02.1985 dismissed the appeal and affirmed the judgment and decree of the learned trial Court.
2. When the appeal was taken up for hearing, it came to the notice of this Court that the compromise decree challenged in the suit was passed on 31.08.1979 and the suit came to be filed on 06.12.1979. On noticing these dates, I found that the suit itself is not maintainable in view of the specific bar contained in Order 23 Rule 3-A of the Code of Civil Procedure. Learned counsel for the appellant was, accordingly, asked to satisfy the Court regarding the maintainability of the suit as is observed in the order dated 08.08.2007.
3. The matter has been heard at length.
Learned counsel for the appellant has raised the following questions for consideration in this appeal:-
(1) Whether the High Court can suo-motu raise the question of maintainability of the suit without any objection from the other side, pleadings of the parties and/or issues in the case?
(2) Whether the suit is barred under Order 23 Rule 3-A of the Code of Civil procedure?
(3) Whether the plaint can be returned under Order 7 Rule 10 of the ?Code of Civil Procedure in the event the suit is found to be not maintainable?
(4) Whether the appellant is entitled to seek any other appropriate remedy available to him under the law?
In view of the above, it is deemed appropriate to answer these questions.
Question No.1.
4. No doubt, the respondents have not raised any objection regarding the maintainability of the suit. It is also true that the maintainability of the suit is not challenged by the defendant-respondent in the written statement or in any other manner. The learned trial Court proceeded to try the suit and a decree also came to be passed dismissing the suit on merits, but not on the ground of its non-maintainability. Even when the appeal came to be filed before the learned Lower Appellate Court, no such question was ever raised by the defendant-respondent. Obviously, no issue in this regard has been framed in the absence of any pleadings to this effect. Even when this appeal came up for final hearing, the question regarding maintainability of the suit has been raised by the Court and not by the respondents. When the maintainability of any lis before the Court comes to its notice either by the parties to the litigation or of its own, it becomes the duty of the Court to consider the same. I feel that it is the obligation of this Court to apply law notwithstanding whether any such objection is raised by any of the parties to the lis or not. This is particularly so where the question is of the competence of the Court to decide an issue. It is in this view of the matter that the parties were put to notice and asked to argue the question of maintainability of the suit in view of clear and categorical provisions of Order 23 Rule 3-A of the Code of Civil Procedure. I do not subscribe the view of the learned counsel for the appellant that the objection regarding the maintainability of the suit can alone be raised by a party to the lis. It should not be forgotten that when a Court is seized of a matter, it is its legal and constitutional obligation to consider all relevant factors and questions of law arising in the case irrespective of objections from the parties to the litigation. This rule is particularly applicable where the question relates to jurisdiction and competence of the Court. I am of the considered v
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
