Back
JAMMU AND KASHMIR HIGH COURT
Javed Iqbal Wani, J.
Mst. Raja – Petitioner
versus
Mst. Fazi and Ors. – Respondents
OWP No.16 of 2016
Decided on 25.8.2023
Civil Procedure Code, 1908 – Order 23 Rules 3 and 3-A – Compromise decree – Challenge as to – Rule 3-A has been introduced in CPC to give finality to litigation and to avoid multiplicity of suits by putting bar on new suit on the ground that agreement of which compromise decree was passed in first suit was not lawful – Petitioner was never called upon by trial Court to produce copies of original document having been taken cognizance by trial Court for dismissal of application besides failure of petitioner to adduce evidence in support of her case and produce all witnesses in one go – Provisions of CPC are designated to facilitate justice as it is not a penal law to punish a person and normally courts do not refuse to grant just relief merely because there is some mistake, negligence, inadvertence or even infractions of rules of procedure – Scheme of CPC in essence is completely adjudication of dispute between parties and to do full justice to the case – Impugned order set aside and matter remanded back to trial court for revisiting and reconsidering case of petitioner in accordance with law. (Paras 10, 12, 13 and 14)
Result: Petition allowed.
JUDGMENT
The Supervisory Jurisdiction of this Court enshrined under Article 227 of the Constitution is being invoked by the petitioner seeking quashment of order dated 11.12.2015 (for short the impugned order) passed by the Court of Sub Judge Special Mobile Magistrate, Anantnag, (for short the trial Court) in case titled as “Mst. Raja Vs. Mst. Fazi and Others”.
2. The seminal facts which are relevant for present purpose and the circumstances in which it arises and stated in the instant petition are that the petitioner herein claimed to be successor in interest (daughter) of one Ahad Parray along with respondent 1 herein and mother of respondents 2 to 4 herein. The said Ahad Parray is stated to have left a landed property entitled to be inherited by his legal heirs named above.
3. It is being further stated that in the year 1970 the petitioner herein was a minor of the age of 12 years and the respondent 1 herein and mother of respondents 2 to 4 herein allegedly obtained a fraudulent and alleged decree from the Court of Munsiff Anantnag in a suit titled as”Mst. Hajra and anr. Vs. Mst. Raja” (in file no. 388) on the basis of a compromise, in order to deprive the petitioner of her share in the estate of her father Ahad Parray.
4. It is being next stated that after coming to know about the said compromise decree on 03.05.2000 the petitioner herein challenged the same before the Munsiff Anantnag in suit being file no. 110/N on 07.05.2001 impleading respondent 1 herein besides the mother of the respondents 2 to 4 as party defendants which suit came to be decreed on 11.09.2003 in ex-parte setting aside the under compromise judgement and decree dated 09.02.1970
5. It is being further stated that respondents herein aggrieved of the judgment and decree dated 11.09.2003 preferred an appeal before the District Judge Anantnag on 09.09.2004 which came to be allowed remanding back the suit to the trial Court, whereafter the trial Court in terms of judgement dated 31.08.2006 dismissed the suit of the petitioner herein on the premise that a party challenging a compromise can file a petition under proviso appended to order 23 Rule 3 CPC for questioning the validity of the compromise in view of the order 43 Rule 1-A CPC.
6. It is being further stated that the petitioner herein aggrieved of the judgement dated 31.08.2006, preferred an appeal on 04.11.2006 before the Additional District Judge, Anantnag which Court while concurring the judgement passed by the trial court dismissed the appeal, however provided an opportunity to the petitioner herein to take appropriate proceedings, if available, under law for setting aside of the compromise decree whereafter, it is being stated that an application under Order 23 Rule 3 CPC came to be maintained by the petitioner herein before the trial Court seeking setting aside of the compromise decree dated 09.02.1970 and which application came to be dismissed by the trial Court in terms of the impugned order.
7. The petitioner has questioned the impugned order inter-alia on the grounds that the same has been passed without providing her an opportunity of hearing to produce her witnesses and that the trial Court passed the impugned order in absence of the counsel for the petitioner.
8. Response to the petition has been filed by respondents wherein it is being inter-alia stated that the petition is not maintainable and that the trial Court has rightly dismissed the application for want of proof and the application filed under Order 23 Rule 3 was not maintainable, as such, an application would lie only when a suit is pending before the Court.
Heard counsel for the parties and perused the record.
9. It is significant to note that the application filed by the petitioner before the trial Court wherein the impugned order has been passed though is styled to have been filed under Order 23 Rule 3 CPC, yet, the contents of the application coupled with the prayer made therein would ex-facie suggest that the said application
Compromise decree – Provisions of CPC are designated to facilitate justice as it is not a penal law to punish a person.
The main legal point established in the judgment is that a stranger to a suit/lis is not entitled to seek setting aside of a compromise judgment and decree and cannot invoke supervisory jurisdiction ....
A party not involved in a compromise decree may challenge it if they do not claim rights through a party to that decree, as per Order 23 Rule 3-A.
Rejection of plaint – Bar contained under Order 23 Rule 3-A of CPC shall not be applicable to a stranger to compromise decree challenging compromise decree provided he is not claiming any right throu....
A suit where a decree based on compromise is not challenged, but compromise itself is called into question, would also be barred by provisions of Order XXIII Rule 3A of CPC.
(1) No suit shall lie to set aside a decree on the ground that compromise on which decree is based was not lawful.(2) Mere clever drafting would not permit plaintiff to make suit maintainable which o....
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
