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2006 Supreme(Sikk) 17
A. P. SUBBA, J.
Palden Bhutia and Ors.
Versus
Januka Chettri and Ors.
F. A. No. 9 of 2006
Decided on : 20 -11 -2006
A. Moulik, Sr. Counsel a/b N. G. Sherpa and Miss Kesang Diki Bhutia, for Appellants; R. K. Agarwal a/b J. B. Pradhan, for Respondents.
Rule 3-A of Order XXIII of CPC bars a separate suit to set aside a compromise decree on the ground that the compromise was not lawful, in line with the legislative intent to avoid multiplicity of suits and prolonged litigation.
Headnote:
Compromise Decree - Challenge to Compromise Decree - Order XXIII Rule 3-A of CPC - Summary of Acts and Sections: Order XXIII Rule 3, Order XLIII Rule 1(m), Section 96(3) of CPC, Indian Contract Act 1872, Section 23 - The court discussed the provisions of Order XXIII Rule 3 and Rule 3-A of CPC, and their interpretations by various High Courts and the Apex Court. The court highlighted that Rule 3-A bars a separate suit to set aside a compromise decree on the ground that the compromise was not lawful. The court also emphasized that the legislative intent was to avoid multiplicity of suits and prolonged litigation.
Fact of the Case:
The Appellants, minors, filed a Civil Suit in 1988 for declaration and recovery of possession of ancestral land. The suit was compromised and disposed of in 1990. In 2005, the Appellants filed a suit to set aside the compromise decree. The trial court held that the suit was barred by Rule 3-A of Order XXIII of CPC and dismissed the suit.
Finding of the Court:
The court found that the suit to set aside the compromise decree was not maintainable as per Rule 3-A of Order XXIII of CPC, which bars a separate suit on the ground that the compromise was not lawful.
Issues: The main issue was whether the suit to set aside the compromise decree was maintainable under Rule 3-A of Order XXIII of CPC.
Ratio Decidendi: The court held that Rule 3-A of Order XXIII of CPC bars a separate suit to set aside a compromise decree on the ground that the compromise was not lawful, in line with the legislative intent to avoid multiplicity of suits and prolonged litigation.
Final Decision: The appeal was dismissed as the court found that the suit to set aside the compromise decree was not maintainable under Rule 3-A of Order XXIII of CPC.
2. The facts of the case, relevant for the purpose of this Appeal, in a nutshell, are that the Appellants herein, who were minors, filed a Civil Suit being Civil Suit No. 14 of 1988 through their mother and natural guardian against the present Respondent No. 1 and others in the Court of learned Civil Judge (West) at Gyalshing for declaration, recovery of possession and other reliefs in respect of a piece of land i.e. the suit land in the year 1988. In the said suit the case of the Plaintiffs/Appellants, in short, was that they were Sikkimese by birth and members of Bhutia Tribal Community of Sikkim, whereas the Defendants /Respondents were the members of Nepali Community who did not hold Sikkim Subject. The suit land was their ancestral and joint family property. As such, their ather Late Gompu Bhutia, who had sold the suit land to the Respondents, had no right to alienate the same. The alienation made by him was, therefore, not binding upon the Plaintiffs/Appellants. However in course of the proceedings, the parties compromised the matter on the intervention of well-wishers of both parties and filed a joint compromise petition and the suit was disposed of by the learned Civil Judge vide order dated 17-5-1990 in terms of the said compromise. Subsequently, in the year 2005 the present Appellants who are the legal heirs of late Gompu Bhutia instituted a suit being Title Suit No. 9 of 2005 in the Court of the learned District Judge (South and West) at Namchi on 25th October, 2005 for declaration that the compromise decree dated 17-5-1990 passed by the learned Civil Judge, West Sikkim in Civil Suit No. 14 of 1988 was untenable in the eye of law, and for other reliefs including the prayer for restoration of possession after setting aside the decree. The Respondents contested the suit by filing joint written statement, raising several grounds, wherein a preliminary issue relating to maintainability of the suit was raised. On the basis of the pleadings, the learned trial Court vide Order dated 17-12-2005 framed 13 issues, out of which issue Nos. 1, 2 and 3 were to be heard as preliminary issues. However, on the submissions made by the learned Counsel for the parties on 13-3-2006, the Issue No. 1 relating to bar of Rule 3-A of Order XXIII, CPC (Issue No.1) was taken up first for hearing and vide, impugned judgment and decree dated 24-3-2006, the learned trial Court decided the preliminary issue, holding that the suit was barred by the provisions of Rule 3-A of Order 23 of CPC and accordingly dismissed the suit. Being aggrieved by the said judgment/decree dated 24-3-2006, the Plaintiffs/Appellants have come up in the present Appeal.
3. Mr. A. Moulik, learned Senior Counsel assisted by Mr. N. G. Sherpa and Ms. Kesang Diki Bhutia, learned Counsel appearing on behalf of the Plaintiffs/Appellants and Mr. R. K. Agarwal, learned Counsel assisted by Mr. J. B. Pradhan, learned Counsel were heard.
4. The submission of Mr. A. Moulik, the learned Senior Counsel was that, the suit filed by the Plaintiffs/Appellants for setting aside the compromise decree was maintainable in law, as it was not hit by the provisions of Rule 3-A of Order 23, CPC. According to him, the words 'not lawful' occurring in R.3-A of Or. XXIII have reference only to the cases which fall within the contemplation of Sec. 23 of Indian Contract Act, and in all other cases the bar would not operate and a suit would lie. The submission of Shri R. K. Agarwal, learned counsel for the Respondents, in reply, was that the grounds taken in the suit filed by the Plaintiffs /Appellants do not fall outside the purview of Section 23 of the Indian Contract Act and thus the suit was not maintainable in view of the provisions of Rule 3-A of Or. XXIII of CPC.
5. The short question that falls for consideration of this Court
