K. N. Mishra, J. - (1.) THIS writ petition under Article 226 of the Constitution is arising out of the proceeding under Section 20 of the U. P. Consolidation of Holdings Act (hereinafter referred to as the Act) in the matter of allotment of Chak.
(2.) THE petitioners had filed objection under Section 20 of the Act against the opposite parties about the Chaks which were allotted to them against their original holdings. THE Consolidation Officer vide order dated 25-2-1971 dismissed the objection. Aggrieved by it, the petitioners had filed appeal which was partly allowed by the Settlement Officer (Consolidation) vide order dated 23-3-1972. THEreupon the petitioners filed two revisions which were registered as Revision No. 1391 and 2020 of 1972. Shiva Pujan, opposite party No. 1 has also filed Revision No. 1290. On 1-7-1975 the parties entered into a compromise and on the basis of this compromise the Deputy Director of Consolidation vide order dated 2-7-1975 had allowed the revisions and had directed the amendments to be made in the respective chaks of the parties. This order of the Dupty Director of Consolidation dated 2-7-1975 is contained in annexure 3 to the writ petition. Since Sarju Singh' opposite party No. 4 had not signed the said compromise, he moved an application for setting aside the aforesaid order dated 2-7-1975. THE Deputy Director of Consolidation vide order dated 31-8-1979 recalled the aforesaid order and after hearing the parties on merits, he allowed Revision No. 1290 filed by Sheo Pujan vide order dated 23-2-1980 and rejected the revisions filed by the petitioners. Aggrieved by this order, the petitioners filed this writ petition. Learned counsel for the petitioners contended that the petitioner No. 2 Vishwanath Singh was not afforded any opportunity of being heard in the revision which was decided by order dated 23-2-1980 and as such, the said order stands vitiated being violative of principle of natural justice. I do not find any merit in this submission. It is not disputed that the petitioner No. 2. Vishwanath Singh is a co-tenure-holder alongwith petitioner no. 1 and a joint chak no. 318 was allotted to them. The petitioners had also filed joint claim. They were represented by the counsel in the aforesaid revisions as well as in the revision which was filed by Shiva Pujan Singh. The petitioners' counsel was heard by the Deputy Director of Consolidation while passing the impugned order. In these circumstances, it cannot be said that the impugned order suffers from any error and is violative of principles of natural justice. The Deputy Director of Consolidation while recalling his order dated 2-7-1975 had fixed the date of hearing on 26-9-1979. It is asserted by petitioner No. 2 that he was not heard by the Deputy Director of Consolidation while passing the order dated 31-8-1979. He was admittedly represented by his counsel, who was given the date aforesaid for hearing in the revision itself. In these circumstances, no fresh notice was required to be issued to him as his counsel had notice about the date of hearing. In this view of the matter I do not find that the impugned order suffers from any infirmity. Learned counsel for the petitioner next argued that the Deputy Director of Consolidation while passing the impugned order and making alteration in the chak has taken into consideration the compromise which was already set aside by him vide order dated 31-8-1979. He further urged that since the earlier order based on compromise was set aside, the compromise itself became extinct and non est and as such the Deputy Director of Consolidation should not have ordered alteration in the chaks on the basis of the earlier compromise but he should have decided the case on the merits of the contention of the parties and should not have made unjustified alterations in the chaks. I do not find any merit in this submission.
(3.) BY order dated 31-8-1979, the Deputy Director of Consolidation had set aside the order dated 2-7-1975, which was passed in terms of compromise. The compromise itself was not set aside. In Shadi Ram v. Amin Chand, AIR 1930 Lahore 937, it was held by the Lahore High Court that a compromise which has merged in a decree does not become extinct upon the decree being set aside. In this view of the matter, I am of the opinion that where a decree or order based on compromise is set aside but the genuineness of the compromise itself has not been doubted in any manner, whatsoever, nor it has been set aside being invalid or fraudulently obtained, the compromise would continue to have the legal force and binding effect on the parties thereto. It can be referred to and relied upon in that very suit or proceedings and also in other proceedings as well, for the purpose of showing the terms contained therein, to which the parties had agreed with open eyes and settled to be bound by it. It can also be referred and relied upon as a valid piece of evidence containing admissions of parties thereto on relevant facts contained therein. It would, of course be open to parties to urge and establish the circumstances, dubious in nature, in which it was obtained, so as to indicate that it was not at all genuine and was fraudulently obtained. It can also be shown that the facts contained therein are erroneous and untrue or that the parties never intended to be bound by it or that it is opposed to law. A party to the compromise, however, cannot wriggle out of it, unless he succeeds in establishing facts touching its validity on the ground of being arrived at between the parties not competent to enter into a compromise or being filed or recorded not in accordance with the prescribed procedure and law or that it was vitiated by some misrepresentation of facts or undue influence, coercion or fraud practised either on the party or upon court. If court has been defrauded in accepting a compromise for example, where some one impersonated while executing and presenting a compromise for and on behalf of a party and the court accepts the same believing it to have been arrived at genuinely by the concerned party itself it would be void ab initio and non est. But where a party is defrauded and the compromise stands vitiated for reasons aforesaid, the same can be avoided and the party defrauded can resile from it either in the same proceedings before that court or in appeal or revision against the order founded on such compromise or by a separate suit in that behalf. But if the compromise filed and verified before the court of competent jurisdiction was found to be genuine and bona fide, it would survive and continue to have legal force and binding effect although the decree or order which was passed on its basis was set aside. The Deputy Director of Consolidation has, thus, not acted illegally in placing reliance upon the earlier compromise filed in the case, which has not been shown to be either fictitious or fraudulently obtained and thus the parties thereto were bound by it.;