IMPORTANT POINT
Separate suit for challenging compromise on the ground that it was obtained by fraud is not maintainable.

A.S. Chandurkar, J.—Admit. Heard finally in view of notice for final disposal issued on 23/09/2014.

2. By this civil revision application filed under Section 115 of the Code of Civil Procedure (for short ‘the Code’), the applicant, who is the original defendant No.1 in S.C.S. No.5055/2012 has challenged the order dated 30/06/2014 passed on the application below Exhibit-33 filed under provisions of Order VII Rule 11(a) and (d) of the Code for rejection of the plaint. Similarly, the order dated 15/09/2014 rejecting the review application below Exhibit49 filed by the applicant is also under challenge.

3. Few facts which are relevant to consider the challenge as raised in the revision application are that, initially the non-applicant No.1 had filed S.C.S. No.581/2006 against the present applicant and three others. It was the case of the non-applicant No.1 that he was the lawful owner of land bearing Kh. No.46 and part of land bearing Kh. No.47, admeasuring 1.75 acres. It was the further case that though the non-applicant No.1 was the owner of aforesaid land, by saledeeds dated 24/12/1998 and 29/01/2001, he was sought to be divested of his title. The aforesaid suit was, therefore, filed for declaration that the non-applicant No.1 was the lawful owner of the suit lands on the basis of saledeed dated 08/01/1999 and for a declaration that the saledeeds dated 24/12/1998 and 29/01/2001 were null and void. A prayer for permanent injunction was also made. The applicant who was the defendant No.1 had filed a counterclaim seeking declaration of his title. During pendency of the said civil suit, a compromise petition came to be filed on record on 07/10/2008. In terms of said compromise petition, the suit was withdrawn and the counterclaim filed by the applicant came to be decreed. This order was passed on 10/08/2008.

4. Thereafter, the non-applicant No.1 on 01/12/2012 filed S.C.S. No.5055/2012 against the present applicant and another praying therein that the compromise decree that was passed in S.C.S. No.581/2006 be declared as null and void. A further declaration was sought that the saledeed dated 08/01/1999 was valid and that the saledeeds dated 24/12/1998 and 29/01/2001 were null and void ab initio. Other consequential reliefs were also prayed for. There was also a prayer for perpetual injunction with regard to protecting the possession of the non-applicant No.1.

5. The applicant moved an application under provisions of Order VII Rule 11(a) and (d) of the Code below Exhibit-33. It was stated in the application that S.C.S. No.581/2006 had been withdrawn by the non-applicant No.1 without seeking any further liberty/ permission to file fresh proceedings. It was stated that, such course was not permissible. The subsequent suit was also barred in view of provisions of Order XXIII Rule 3A of the Code. It was further stated that the subsequent suit was also barred by limitation. On these counts, it was prayed that the plaint be rejected. The non-applicant No.1 filed his reply below Exhibit 36A and opposed the application. The trial Court by order dated 30/06/2014 rejected said application below Exhibit-33. It held that the subsequent suit had been filed within limitation and that withdrawal of the earlier suit would not preclude the non-applicant No.1 from instituting the subsequent suit.

6. The applicant thereafter filed an application below Exhibit49 seeking review of the order passed below Exhibit-33 on the ground that the trial Court had committed an error apparent on the face of record while rejecting said application. The review application was also rejected on 15/09/2014. Both these orders are challenged in this revision application.

7. Shri M.G. Bhangde, the learned Senior Counsel for the applicant submitted that the trial Court committed an error when it rejected the application below Exhibit-33. It was submitted that S.C.S. No.581/2006 had been withdrawn by the non-applicant No.1 on the ground that the proceedings had been co