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TMI Blog2010 (9) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of institution of the aforesaid suit the plaintiff-Amarchand and defendants No. 1 & 2 were minor. The suit was instituted fraudulently and on the same day, on the basis of compromise a decree was obtained, however, the plaintiffs did not submit any compromise application in the suit, neither they appeared before the court in the proceedings of Civil Suit No. 393-A/1980. The defendants played a fraud and obtained the decree. The plaintiffs came to know about the decree on 4-8-1985. The defendants in their written statement denied the pleadings of the plaintiffs. They pleaded that a suit was instituted before the civil court on 7-7-1980 and on the same day the plaintiffs appeared before the court and submitted a compromise. On the basis of aforesaid compromise, the trial court passed a decree on the same day i.e on 7-7-1980 and declared that the defendants are the owner of the suit land. Thereafter the name of the defendants had also been mutated in the revenue record. The plaintiffs had knowledge about the judgment and decree. The trial court after appreciation of evidence on record of the case decreed the suit of the plaintiffs-respondents No. 1 to 3 and thereafter the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court on 7-7-1980: Today a suit has been filed by Mr. Vishesh Kumar Mishra, Advocate. Reader submitted his report, perused and case be registered as Civil Suit 'A'. At that time defendants along with Shree P.D. Gupta, Advocate appeared. A copy of the Civil Suit was supplied and thereafter the defendants produced the compromise, it was verified and accepted. Statement of the defendants were recorded and as per the compromise suit has been decreed Bhaggu (P.W.1), Hachchu (P.W.2) in their evidence specifically deposed that they did not receive any notice of the suit, neither they appeared before the court, nor they submitted any compromise before the court and at that time Amarchand was minor, who was aged about 5-6 years. This decree was obtained by playing a fraud. They further pleaded that they were in possession of the suit property. On behalf of the defendants, Balkrishna in his evidence deposed that the defendants were in possession over the suit land and the suit was filed and the defendants were present before the court. At that time Amarchand was aged about 7 years. A compromise was filed before the court and thereafter the suit was decreed. Plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. [(1-A) An application for leave under Sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor: Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor.] (2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. From the aforesaid provisions, it is clear that when the defendant is a minor, the court shall appoint a proper person to be guardian in the suit for such minor. In Civil Suit No. 393-A/1980 instituted by the plaintiffs namely, Santosh Kumar and Asho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is void and not merely voidable." The Hon'ble Supreme Court in the case of Kaushalya Devi and Ors. v. Baijnath Sayal (deceased) and others, reported in MANU/SC/0028/1961 : AIR 1961 SC 790, has held as under in regard to a decree passed by the court without complying the provisions of Order XXXIII Rule 7(1),: The effect of the failure to comply with Order 32, R. 7(1) (which requires the sanction of the Court to the compromise entered into on behalf of the minor to be recorded) is specifically provided by Order 32 R. 7 (2) which says that any such agreement or compromise entered into without the leave of the court so recorded shall be voidable against all parties other than the minor. What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. If the minor avoids the said agreement it would be set aside but in no case can the infirmity in the ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurulingayya Poojari.]" If a compromise is to be held to be binding, as is well known, it must be signed either by the parties or by their counsel or both, failing which Order 23 Rule 3 of the Code of Civil Procedure would not be applicable.(See Gurpreet Singh v. Chatur Bhuj Goel). In Dwaraka Prasad Agarwal v. B.d. Agarwal, this Court held:(SCC pp.243-44, paras 32 and 35) The High Court also failed and/or neglected to take into consideration the fact that the compromise having been entered into by and between the three out of four partners could not have been termed as settlement of all disputes and in that view of the matter no compromise could have been recorded by it. The effect of the order dated 29-6-1992 recording the settlement was brought to the notice of the High Court, still it failed to rectify the mistake committed by it. The effect of the said order was grave. It was found to be enforceable. It was construed to be an order of the High Court, required to be implemented by the courts and the statutory authorities. * * * .. Even if the provisions of Order 23 Rule 3 of the Code of Civil Procedure and/or principles analogous thereto are held to be applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the bar of Order 23 Rule 3-A would not be applicable in that case. The matter can also be looked into from another angle. The present appellants did not raise a plea that the suit filed by the plaintiffs was not maintainable in view of the provisions of Order 23 Rule 3-A of the Civil Procedure Code, neither any issue was framed by the trial court to this effect. The present appellants contested the suit and submitted to the jurisdiction of the court and at the time of second appeal, the point has been raised for the first time. When the appellants themselves submitted to the jurisdiction of the court and went to the trial , in my opinion, they are stopped on the principle of acquiescence raising the point of jurisdiction of the court in the facts when the compromise decree passed by the trial court, is patently illegal. The Hon'ble Supreme Court in the case of Sneh Gupta (supra) has clearly held that the court has a duty to prevent injustice to any of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as injustice. In the facts and circumstances of the present case, if the decree be set aside passed by the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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