High Court Of Madhya Pradesh
S. P. SHRIVASTAVA
GUDDI - Appellant
Versus
BANWARI - Respondents
Civil Revision 315 Of 1997
Decided On : 04/03/1998
AMENDMENT OF PLAINT - ORDER 6 RULE 17 CPC - ORDER 23 RULE 3-A CPC - ORDER 32 RULE 7 CPC - VOIDABLE DECREE - VOID DECREE - MINORITY - COMPROMISE - SUIT TO SET ASIDE DECREE - FRAUD ON COURT - FRAUD ON PARTY - DISTINCTION - REMEDY - APPLICATION TO SET ASIDE DECREE - SUIT TO SET ASIDE DECREE - JURISDICTION - COURT'S DISCRETION - REVISION - INTERFERENCE - GROUNDS - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT.
Fact of the Case:
The plaintiff filed a suit for a declaration of title to agricultural holdings and a permanent prohibitory injunction. During the pendency of the suit, she filed an application to amend the plaint to include an assertion that a previous decree was illegal and void and sought a declaration to that effect. The trial court rejected the application, holding that the suit was barred by Order 23, Rule 3-A of the Code of Civil Procedure (CPC).
Finding of the Court:
The court held that the trial court was correct in rejecting the application to amend the plaint. The court found that the plaintiff was seeking to challenge a decree based on a compromise, which is prohibited by Order 23, Rule 3-A of the CPC. The court also found that the plaintiff's claim that the decree was void was not supported by the evidence.
Issues: 1. Whether the plaintiff could amend the plaint to include an assertion that a previous decree was illegal and void and seek a declaration to that effect. 2. Whether the suit was barred by Order 23, Rule 3-A of the CPC.
Ratio Decidendi: 1. Order 23, Rule 3-A of the CPC prohibits the filing of a suit seeking to set aside a decree on the ground that the compromise on which the decree is based was not lawful. 2. A decree based on a compromise entered into without the leave of the court is voidable against all parties other than the minor. 3. The plaintiff's claim that the decree was void was not supported by the evidence.
Final Decision: The court dismissed the revision petition and upheld the trial court's order rejecting the application to amend the plaint.
( 1 ) -FEELING aggrieved by the impugned order passed by the trial court rejecting her application for amending the plaint by incorporating therein the proposed amendments she has now approached this court seeking redress praying for the reversal of the impugned order.
( 2 ) HEARD the learned counsel for the ap-plicantas well as learned counsel representing the contesting respondents and perused the record.
( 3 ) THE brief facts, shorn of details and necessary for the disposal of this revision lie in a narrow compass. The suit giving rise to the impugned order had been filed by the plaintiff-applicant in the year 1990 praying for a decree of declaration in respect of her title to the agricultural holdings in suit as well as a decree or permanent prohibitory injunction.
( 4 ) DURING the pendency of the suit an application dated 11. 2. 1997 was filed by the plaintiff seeking permission to amend the plaint by incorporating therein paragraph 4 (a) and an additional relief. In the proposed paragraph 4 (a) the plaintiff had asserted that the decree dated 28. 7,1983 passed in Vaijanti and Ors. v. Banwari and Ors. , by the Civil Judge, Class II. Joura, was illegal being contrary to law and was liable to be cancelled being void and the plaintiff was not bound by that decree nor it could be enforced against her. The additional relief sought, by the plaintiff was for a declaration that the decree passed in Vaijanti and Ors. v. Banujari and Ors. (supra), passed by the civil judge, Class II, Joura, was illegal and void.
( 5 ) A perusal of the application filed by the plaintiff under Order 6, Rule 17, CPC, referred to hereinabove, indicates that the Civil suit No. 3-A/83 was filed by the applicant during her minority wherein besides her mother she had also been impleaded as a plaintiff under the guardianship of her mother.
( 6 ) THE aforesaid suit was decided in terms of a compromise. The plaintiff has asserted in the said application that the provisions of Order 32 Rule 7, CPC had not been complied with by the trial court and the compromise was a collusive affair and her mother had acted against the interest of the plaintiff and had no authority to enter into any compromise. It is claimed that at the time of passing of the decree on the basis of the compromise the plaintiff was a minor and the present suit which had initially been filed by her as a minor under the guardianship of her maternal uncle was now being prosecuted by her on her attaining majority.
( 7 ) THE aforesaid application was contested by the defendant on various grounds. The trial court under the impugned order came to the conclusion that the decree passed in original Civil Suit No. 3-A/83 was based on a compromise and in view of the prohibition contained in Order 23, Rule 3-A, CPC no suit was maintainable challenging the decree based on compromise and in this view of the matter there could be no justification for allowing the amendment as prayed for.
( 8 ) LEARNED counsel for the applicant has contended that the decree passed in Original civil Suit No. 3-A/83 was void and, therefore, there could be no impediment in permitting the amendments in the written statement. What has been asserted is that the provisions contained in Order 32, Rule 7, CPC expressly prohibit the next friend to enter into an agreement or compromise on behalf of a minor with reference to the suits without the leave of the court expressly recorded in the proceedings.
( 9 ) THE learned counsel for the contesting respondent has, however, pointed out that the provisions contained in Order 32, Rule 7 (2) of the Code of Civil Procedure clearly indicate that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor. His contention is that, it is therefore, obvious that in case the leave is granted it will not be voidable by the minor but in case no such leave is granted it shall remain voidable even
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