IMPORTANT POINT
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 through a party to compromise decree.

JUDGMENT

This Civil Revision is directed against the order dated 06.10.2022 passed by the Court of Learned Munsiff, Pulwama (for short ‘the trial court’), whereby the application of the petitioners under Order 7 Rule 11 CPC for rejection of the plaint has been dismissed.

2. The order has been impugned by the petitioners on the ground that the contesting respondents 1 to 5 could not have filed the suit against the petitioners for challenging the decree passed in suit titled “Ghulam Nabi Khanday & Anr. versus Mst. Azizi & Anr.” by the court of learned Sub-Judge, Shopian, besides other reliefs, in view of the bar contained under Order 23 Rule 3-A CPC.

3. Mr. G.A. Lone, learned counsel for the petitioners has vehemently argued that once there was a decree passed pursuant to the compromise in respect of the suit property, the contesting respondents could not have filed the suit in view of the bar contained in Order 23 Rule 3-A CPC. Learned counsel further submitted that the judgments as reflected in the order impugned have been wrongly applied by the learned trial court. Mr. Lone, learned counsel for the petitioners has relied upon the judgment of the Hon’ble Supreme Court of India in Triloki Nath Singh Vs. Anirudh Singh (D) thr. LRs & Ors, (2020) 6 SCC 629.

4. Per contra, Mr. Malik Mushtaq, learned counsel appearing for contesting respondents submitted that the order impugned has been passed in accordance with law and since the contesting respondents were not parties to the compromise decree, they had every right to file the suit. Learned counsel relied upon the judgment passed by the co-ordinate Bench of this Court in the case of “Nikhat Nabi vs. M/S Fancy Fabrics and Others (J AND K Bank Limited) (CM(M) No.265/2022 decided on 22.09.2023).

5. Heard and perused the record.

6. The perusal of the trial court record reveals that Mst. Khatji i.e. predecessor-in-interest of the contesting respondents had filed a suit against the petitioners and proforma-respondents praying for a decree of declaration, partition with separate possession and permanent injunction. The relief of declaration included the declaration of the collusive decree dated 30.12.1995 passed by the learned Sub-Judge, Shopian as null and void qua the rights of Mst. Khatji in respect of the land measuring 10 kanals comprising survey no. 271 and 1899/1702/1322 situated at Drabgam Pulwama. A perusal of the suit titled “Ghulam Nabi Khande & Anr. versus Mst. Azizi & Anr.” reveals that the petitioner Nos. 1&2 had filed the suit against Mst. Azizi & Mst. Rehmati and Mst. Khatji, who was also the daughter of Wahab Dar was not made party in the said suit.

7. During the pendency of the suit, Mst. Khatji died and she was substituted by the contesting respondents in the suit as legal representatives of the deceased plaintiff therein. Thereafter the petitioners filed an application seeking rejection of the plaint on the ground of being barred under Order 23 Rule 3-A of CPC. The response was filed by the contesting respondents stating therein that the learned trial court had concluded the trial of the suit and when the matter was posted for final arguments, then only the aforesaid application was filed just to delay the suit. It was further stated that the contesting respondents had not claimed any right or title through any of the parties to the compromise decree and, as such, the application filed by the petitioners was misconceived.

8. The learned trial court vide order impugned rejected the application of the petitioners thereby observing that neither the plaintiff nor her predecessor-in-interest i.e. Wahab Dar, through whom the original plaintiff was claiming, was a party to the suit. It is not in dispute that it is the estate of Wahab Dar which is the subject matter of litigation.

9. The moot question that arises for consideration of this Court is as to whether the bar created under Order 23 Rule 3-A of CPC is applicable to the suit filed by a person who is neither a party to t