C.R. No. 2083 of 2011

[1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

C.R. No. 2083 of 2011

Date of Decision: January 18, 2012

Ram Phal

…..Petitioner

Vs.

Smt.Chandro and others

…..Respondents

CORAM:

HON’BLE MR. JUSTICE M.M.S. BEDI.

1.

Whether reporters of local papers may be allowed to seek the

judgment?

2.

Whether to be referred to the Reporter?

3.

Whether the judgment should be reported in the Digest?

-.-

Present:-

Mr.S.S. Kharab, Advocate for the petitioner.

Mr.Saurabh Bajaj, Advocate for respondent No.1.

Mr.S.S. Nara, Sr. DAG, Haryana.

-.-

M.M.S. BEDI, J. (ORAL)

Defendant has filed this revision petition under Article 227 of

the Constitution of India to impugn the order dated December 6, 2010

passed by Civil Judge, (Junior Division), Panipat, dismissing the suit of the

plaintiff- petitioner being not maintainable in view of the provisions of

C.R. No. 2083 of 2011

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Order 23 Rule 3-A CPC while allowing the application of the defendant-

respondents objecting to the maintainability of the suit.

The brief facts which are relevant for the adjudication of the

present petition are that plaintiff- petitioner had filed a suit challenging the

consent decree dated August 21, 1986 passed on the basis of the statement

of the plaintiff and others consenting that the suit property vested in

Chandro, defendant- respondent No.1. The plaintiff has averred in the

plaint that he never appeared in the said civil suit titled Chandro Vs. Boti

etc. nor made any statement in the suit. He had not even engaged any

counsel to represent him in the said case. Defendant No.1 Chandro filed an

application for dismissal of the suit on the ground that a separate suit

challenging the judgment and decree passed upon a compromise prepared

under Order 23 Rule 3 A CPC claiming that plaintiff- petitioner was a party

to the said suit and it was decided on August 21, 1986. It was not

permissible to the plaintiff-petitioner to challenge the consent decree after a

lapse of 24 years. The trial Court vide impugned order relying upon the

judgment of Supreme Court in Pushpa Devi Bhagat (D) by LRs. Vs.

Rajinder Singh and others AIR 2006 SC 2628 held that no independent

suit can be filed for setting aside the compromise decree on the ground that

compromise was not lawful in view of bar contained in Order 23 Rule 3A

CPC and that the only remedy available to the plaintiff to avoid consent

decree was to approach the Court which recorded the compromise and

passed the decree in terms of it and to establish that there was no

C.R. No. 2083 of 2011

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compromise. Under the said observations, the suit of the plaintiff-

petitioner has been dismissed as not maintainable.

Counsel for the plaintiff- petitioner has submitted that

respondent No.1 alongwith Smt.Chameli Devi had earlier filed a suit

No.673 of 1981 for declaration that they are owners in possession to the

extent of 2/3^rd share each in equal share of land measuring 88 kanals 1 marla

comprised in Khewat No.2 khatoni No.4. The said suit was dismissed in

default under Order 9 Rule 3 CPC on January 13, 1982. Thereafter

respondent No.1 again filed a suit on August 12, 1984 for declaration to the

effect that respondent No.1 alongwith defendants 1 and 3 i.e. Smt.Bhoti and

Smt.Chameli are co-owners/ joint owners in possession to the extent of 1/3^rd

share each in the suit land mentioned in the plaint besides challenging the

revenue entries. A detailed reply had been filed by the petitioner who was

defendant No.2 alongwith Bhoti, defendant No.1 and Phoolwati defendant

No.4 as such there was no occasion for the petitioner and Bhoti to make a

statement for compromising the suit. Plaintiff in the said suit had played a

fraud upon the petitioner and got the statements of the parties recorded at

their own to the effect that the matter has been compromised.

In view of the above said circumstances it is prima