- (1.) BY way of the instant writ petition, the petitioner-plaintiff has beseeched to quash and set-aside the order dated 25th January, 2010, whereby the learned appellate court set-aside the decree dated 4th March, 1995 and remitted the case to the trial court for deciding it afresh after affording an opportunity of being heard to both the parties.
(2.) SHORN of unnecessary details, the facts of the case are that the petitioner-plaintiff filed a suit for permanent injunction against the defendants-respondents in the court of Civil Judge (Jr. Division), Kishangarh Bas, District Alwar, wherein it was averred that the plaintiff was allotted 16 bighas of agriculture land by the defendants and the same was mutated in the revenue record. It was alleged by the petitioner-plaintiff that the defendants were endeavouring to dispossess the plaintiff from his land. Thereafter the suit came to be decreed on 4th March, 1995 on the basis of compromise. The said decree was assailed by the respondents-defendants in the court of appeal and the learned Additional District Judge No.1, Kishangarh Bas, District Alwar set-aside the compromise decree dated 4th March, 1995 and remitted the case to trial court for deciding the suit afresh, as indicated above. Heard learned counsel for the parties and carefully perused the relevant material on record including the impugned order. Learned counsel for the petitioner-plaintiff canvassed that a compromise was entered into by both the plaintiff and defendants and the defendants-respondents were duly identified by Shri Ummed Singh, Advocate. The compromise was verified by the learned trial court and having fully satisfied with the compromise, the learned trial court passed the compromise decree. There was no reason for any manipulation in the compromise entered into between the parties, hence the learned appellate court committed grave error in setting-aside the compromise decree, which deserves to be set-aside. E converso, learned counsel for the respondents-defendants opposed the argument put forth by learned counsel for the petitioner and contended that the respondent-defendant Babu Lal connived with the petitioner-plaintiff and Shri Ummed Singh, Advocate and despite of the fact that he had no power to appear on behalf of rest of the respondents-defendants, maliciously identified them and became a party in getting a fake compromise decree passed by the learned trial court. Learned counsel further defended the impugned order and stated the same to be just and proper, which did not warrant any interference. Learned counsel submits that the writ petition is totally baseless and contrary to material on record, hence the same deserves to be dismissed. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, especially the compromise entered into by the parties as also the judgment and decree dated 7th August, 1998 passed by Civil Judge (Sr. Division), Kishangarh Bas, it is revealed that Mr. Ummed Singh, Advocate was appearing on behalf of defendant Babu Lal and rest of the defendants-respondents did not empower him to appear on their behalf. Despite that, Mr. Ummed Singh, Advocate pretended that he was appearing on behalf of all the respondents-defendants and wrongly identified them. The learned appellate court unequivocally observed in the impugned order that the lower court ought to have taken into consideration all these facts and under order 23 Rule 3 passed a compromise decree only when he was fully satisfied that the suit was wholly or partly adjusted by a lawful agreement or compromise.
(3.) RULE 3 of Order 23 CPC envisages as under: "Compromise of suit.-Whether it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or whether the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]." Learned appellate court has categorically stated in the impugned order that the power filed by Mr. Ummed Singh, Advocate did not bear the signatures of rest of the defendants and despite that he wrongly identified all of them. It is true that one of the defendant Mr. Babu Lal signed the compromise, but mere signatures of Babu Lal does not express the consent of rest of the defendants-respondents for Mr. Ummed Singh to be their Advocate. The learned appellate court has also observed that in case the fact of compromise is denied by the defendants-respondents and in their absence, a compromise decree is passed, the same can be set-aside by the appellate court. The impugned order rendered by the appellate court is, thus, found to be just and proper and it suffers from no infirmity. Learned counsel for the petitioner has utterly failed to convince me to take a view contrary to that of the view taken by the appellate court. Hence, I do not find any ground to interfere with the impugned order and thus, the writ petition being devoid of any substance deserves to be dismissed. ;