- (1.) D. P. Singh, J. Heard learned counsel for the parties.
(2.) THIS writ petition is primarily directed against a compromise decree passed by the trial Court and upheld by the revisional Court vide its order dated 26-4-1983 and 10-3- 1987. The brief facts for decision of this writ petition are that Sri Beni Madho Lal built a Ram Janki temple and gifted a house, well etc. , including plot No. 97 vide registered endowment deed dated 17-11-1936. A trust was created to be managed by a sarvarkar and Pujari. It is admitted to the plaintiff-respondents that at the relevant time, Sri Madan Mohan was the Pujari and sarvarkar of the Deity and the trust. The plaintiff respondent who is employed as a clerk in the local civil Courts, instituted a suit No. 359 of 1971 for injunction, demolition and possession. AFTER EXCHANGE of pleadings and striking of issues, a date was fixed for hearing. It appears that the matter was adjourned on couple of occasions for filing a compromise, but ultimately the suit was dismissed for non-prosecution on 25-4-1975. An application for recall was made which was fixed for 9-3-1979 and then for 27-5-1979. It is the case of the petitioner that without his knowledge a new vakalatnama on his behalf in favour of Virendra Nath Pandey, Advocate was filed, along with an alleged compromise on 27-3-1979 in the restoration case. It appears, on 27-3- 1979 the case was restored and on the next day i. e. 28-3-1979 the suit was decreed on the basis of the compromise. When the petitioner went to Court on 27-5-1979, the next date fixed, he came to know about the fraud committed on him and the deity. The petitioner moved a recall application for setting aside the compromise decree. It was alleged therein that the petitioner never engaged Virendra Nath Pandey and the entire transaction was fraud and prayed for calling a report from an expert for its opinion and examination of Virendra Nath Pandey etc. However, the application was dismissed on 26-4- 1983 and so also the revision has been dismissed by order dated 10-3-1987. All these three orders dated 28-3-1979, 26-4-1983 and 10-3-1987 are under challenge in this writ petition. The learned counsel for the petitioner has urged that the compromise was hit by Order XXIII, Rule 3-B. His contention is that Rule 3-B mandates that in any suit of a representative nature, any compromise entered into without the express permission in writing of the Court would be void. However, learned counsel for the respondents urged that the suit was not representative in nature and, therefore, the requirements of Rule 3 (B) will not apply. Explanation to Rule 3 (B), details the nature of a representative suit for the purposes of Rule 3 (B ). It would be useful to note Rule 3 (B) of Order XXIII which reads as under: "3-B. Before granting such leave the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit. Explanation.- In this rule "representative" means - (a) a suit under Section 91 or Section 92, (b) a suit under Rule 8 of Order I. (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family. (d) Any other suit in which the decree passed may, by virtue of the provisions of this Court or of any other law for the time being in force, bind any person who is not named as party to the suit. "
(3.) FROM a bare perusal of the Explanation to Rule 3 (B), it is apparent that where a decree binds any person who is not named as a party to the suit, would be deemed to be representative suit for the purposes of the said rule. The petitioner-defendant is a public trust which has its followers and devotees of the deity for which the trust was created. It has not been averred that the Court was taken into confidence about the binding nature of the compromise on the followers of the trust and the deity. Even the compromise does not show that they were informed about such a compromise. In some what similar facts where one of the two co- landlords had entered into a compromise with the tenant in a eviction suit. It was found that the co-landlord was not taken into confidence that a non-party (co- landlord) would also be bound by the decree. The Punjab and Haryana High Court in the case of Dr. Madan Gopal v. Deen Dayal & another (AIR 1988 Punjab & Haryana 124) held such a compromise to be void, in view of Rule 3 (B ). In the present case, there is nothing on record to show that the Court was taken into confidence about the binding nature of the compromise on non-parties. The word, "expressly recorded in the proceedings" signify that the leave of the Court for entering into a compromise should invariably be recorded in writing in the proceedings. Mere mentioning of the compromise in the order- sheet would not amount to compliance of the requirements of the rule. For express approval, the Court has to objectively find that the proposal of compromise in the facts of each case was just and convenient even for the non-parties against whom the compromise could operate. Therefore, merely recording the compromise and deciding the suit on its basis would not satisfy one of the sacrosanct object of Rule 3 (B ). A bare perusal of the compromise shows that it is a one sided document. Normally, a compromise consists of `give and take', but the compromise in question curiously relieves the trust of all its rights in the property in favour of an individual. In the case at hand, as the requirements of Rule 3 (B) were not satisfied, the compromise was void and has to be ignored. Learned counsel for the petitioner has further urged that the entire exercise of restoration of the case and decision of the suit on the basis of the compromise was fraudulent. In paragraph 12 of the writ petition, it has been averred that 25th May, 1979 was the date fixed for disposal of the restoration application. This fact has not been denied in paragraph 10 of the counter- affidavit. Further in paragraph 15 of the writ petition, it is clearly stated that the restoration was allowed on 27th March, 1979 while the suit itself was decided on the basis of the compromise on 28th March, 1979. This averment to has not been denied in paragraph 13 of the counter-affidavit. These facts, coupled with the fact that the plaintiff was an employee in the Civil Court, leaves no room of doubt that he was able to maneuver the proceedings of the Court and was also able to procure the compromise decree. The proceedings in the suit also casts a doubt upon the integrity of the then Presiding Sri A. K. Srivastava. In my opinion, even on this score the entire proceedings including the compromise decree cannot be sustained.;