Shishir Kumar, J. - (1.) THIS is the Plaintiffs' second appeal arising out of a suit filed for permanent injunction restraining the Defendants/Respondent s from interfering over the suit land, shown at the foot of the plaint.
(2.) THE brief facts, as stated in the plaint, are that the suit land is agricultural land comprising of plot Nos. 156/1, 157/1, 157/2, 158/1 and 159/1 of Khata No. 17, situated in Non -Zamindari Abolition area of Pargana, Tehsil and District Saharanpur. An application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure seeking interim injunction was also filed and the parties were directed to maintain status quo during pendency of the suit. The Defendants/Respondent s filed their written statement and contested the suit claiming that the Appellants have executed a sale deed in their favour and thus they are Bhumidhar of the land in dispute and Appellants were not entitled to get any injunction. They also claimed that there was a compromise between the parties in pursuance to which Appellants have accepted them as Bhumidhar and thus compromise be made part of the decree. The Appellants brought on record many documents including judgment dated 02.11.1965. It has been stated that the trial Court did not frame any issue, but recorded a finding that the Defendants have surrendered all their rights and title in favour of one partnership firm, namely, M/s Ganga Construction and the same has not been impleaded. It has also been held that some other persons who are also parties to this partnership firm have not been impleaded and, therefore, no relief can be granted to the Appellants for the suit land. The trial Court has further held that compromise claimed by the Defendants cannot be made rule of the Court since it is not legal document. Further, trial Court has dismissed the suit on the ground that the Appellants have not come before the Court with clean hands and have made contrary statements. The appeal filed by the Appellants has also been dismissed. Hence, the present second appeal has been filed. Learned Counsel for the Appellants submits that in a suit for injunction certain procedure has been provided to decide the controversy between the parties. The trial Court without framing any issues has dismissed the suit on the ground that there is a compromise, though no finding to that effect has been recorded that whether the compromise was valid or not and only on the ground that the Plaintiffs/Appellants have not approached this Court with clean hands as well as changed the stand from time to time, therefore, they are not entitled for any relief. Further submission has been made that whether the suit for permanent injunction can be decided without determining the question of possession and without recording a definite finding of possession. A submission has also been made that trial Court as well as the lower appellate Court has erred in law in accepting the compromise, which is apparently illegal. He has placed reliance upon paragraphs 11 and 22 of the apex Court judgment reported in : 2011 (2) AWC 1245 (SC); Alka Gupta v. Narender Kumar Gupta, the same is being quoted below: 11. The pleadings in the two suits make it clear that both parties proceeded on the basis that the partnership between Appellant and Respondent under deed dated 5.4.2000 was only in regard to the business run under the name and style of 'Takshila Institute' at Bhera Enclave, Paschim Vihar, Delhi -110087. The Appellant proceeded on the basis that the property at Rohini and the business carried therein under the name of Takshila Institute, was not a part of the partnership business under deed dated 5.4.2000. Even the Respondent in his written statement in the first suit asserted that the partnership dated 5.4.2000 between Appellant and Respondent did not extend to Takshila Institute at Rohini or other places. In fact Appellant clearly contended that Respondent was carrying on business under the same name of Takshila Institute at Janakpuri, Ashok Vihar and Kalu Sarai in Delhi and also at Dehradun and Palampur, but they were not partnership businesses. The Respondent in his written statement asserted that he alone was carrying on business at those places under the name of Takshila Institute. Therefore, the Court could not, before trial, assume that the sale of Appellant's share in the immovable property at Rohini and the goodwill and assets of the business carried on at Rohini under the name of Takshila Institute should be taken as relinquishment or retirement or settlement of share in regard to the partnership business of Paschim Vihar Takshila Institute. 22. We also fail to understand how costs of Rs. 50,000 could be levied. This Court has repeatedly stated that in dealing with civil suits, Courts will have to follow the provisions of Code of Civil Procedure in levying costs.
(3.) PLACING reliance upon aforesaid judgment, learned Counsel for the Appellants submits that the suit cannot be dismissed under Order II, Rule 2 in absence of issues. The Court below was obliged to frame issues and to decide the controversy accordingly, but the Court below as well as the lower appellate Court has committed an error apparent on the face of the record by dismissing the suit holding that the compromise was arrived between the parties, though it is not valid. The appellate Court has committed the same error by dismissing the appeal holding that in case any of the party is aggrieved by the decision on the basis of compromise, then he has a right to raise the issue. As regards cross objection, the Appellants have submitted that cross objection itself was not maintainable and a finding to that effect has been recorded by the appellate Court, but in spite of the aforesaid fact, the appeal filed by the Appellant has been dismissed only on the ground that as the Appellants have concealed various facts, therefore, they are not entitled for relief and to get permanent injunction. A person is not entitled to get any relief of permanent injunction if he has approached the Court after concealing certain facts. In case the Plaintiffs / Appellants were not able to prove their case, the suit should have been dismissed after framing the issues and after leading the evidences, but the Court below has committed an error apparent on the face of the record to dismiss the suit that too without framing any issues, therefore, substantial question involved in the present appeal is that whether Court below was justified in deciding the suit as it has been decided.;