VED PAL (D) THROUGH LRS & ORS. versus PREM DEVI (D) THROUGH LRS & ORS. on 10 August 2018

1052

[2018] 9 S.C.R.

A

VED PAL (D) THROUGH LRS & ORS.

v.

PREM DEVI (D) THROUGH LRS & ORS.

(Civil Appeal No. 8353 of 2014)

B

AUGUST 10, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Code of Civil Procedure, 1908 – O. XXIII, r.3-A and s.96(3) –High Court disposed of the second appeal in terms of the allegedcompromise arrived at between the parties and decreed the suit –CReview application filed by appellants, dismissed – Held: HighCourt did not examine the plea of the appellants properly keepingin view the facts alleged in the application and observed that theappellants are free to take recourse to other legal remedies –O. XXIII, r.3-A bars filing of the suit, while s.96(3) prohibits filingDof any appeal, thus, legislative intent does not allow the parties totake recourse to these legal remedies to challenge the compromiseonce it is arrived at in the suit/appeal – Order passed in reviewpetition set aside – Matter remanded to High Court for deciding thereview application afresh.

EPartly allowing the appeal, the Court

HELD: 1.1 The appellants are permitted to file anapplication before the High Court for amending their reviewpetition, filed in disposed of second appeal, raising all theirgrievances against the manner in which the second appeal cameFto be disposed of in the light of alleged compromise, to enablethe High Court to decide the review petition afresh. In this case,this course is followed keeping in view the bar contained in Order23 Rule 3-A of the CPC for filing the suit in a case of this natureand also another bar created under Section 96 (3) of the CPC,which prohibits filing of any appeal, though in this case it doesGnot apply because the dispute arose in second appeal filed underSection 100 of the CPC. The legislative intent does not allow theparties to take recourse to these legal remedies to challenge thecompromise once it is arrived at in the suit/appeal. The onlyexception being if the challenge is founded on the ground of fraud H

committed by the parties in obtaining any judicial orders, the suit,in appropriate case, may lie. [Paras 6-8] [1054-E-H; 1055-A]

1.2 In this case, the High Court did not examine the pleaof the appellants properly keeping in view the facts alleged inthe application and while negativing the attack observed that theappellants are free to take recourse to any other legal remedies.Since the second appeal was disposed of affecting the rights ofthe parties in the light of compromise, the proper forum to re-examine the issue is the High Court, which disposed of the secondappeal rather than any other forum to examine the issue at thisstage. It is more so when the High Court did not go into thedetails in the proceedings filed by the appellants in its correctperspective. [Para 9] [1055-B-C]

1.3 The impugned order passed in Review Petition is setaside and the High Court is requested to decide the matter afreshon merits in accordance with law. The appellants are at liberty toamend the review petition or/and file fresh application raising alllegally permissible grounds to attack the order impugned therein.The respondents too are at liberty to raise objections inaccordance with law. [Paras 11, 13] [1055-D-E, F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8353of 2014

From the Judgment and Order dated 26.09.2006 and 29.01.2007of High Court of Punjab and Haryana at Chandigarh in RSA No. 4576of 2003 and Review Application No. 75-C of 2006 respectively Akshat Goel, Manoj Swarup, Vivek Sharma, Anshul Garg, YashPal Dhingra, Rajshekhar Rao, Abhinav Mukerji, Chaitanya Puri, Ms.Gauri Puri, Advs. for the appearing parties.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J. 1. This appeal is directedagainst the final judgment and order dated 26.09.2006 passed by theHigh Court of Punjab & Haryana at Chandigarh in R.S.A. No.4576 of2003 whereby the High Court disposed of the second appeal in terms ofthe compromise arrived at between the parties and decreed the suit.Against the said order, the appellants herein filed Review Application A

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ANo.75-C of 2006 in R.S.A. No.4576 of 2003 which was dismissed bythe High Court by order dated 29.01.2007.

2. Few facts need to be mentioned for the disposal of this appeal.

3. Respondent Nos.4 to 7 herein filed second appeal before theHigh Court challenging the judgment and decree dated 01.02.2003 passedBby the First Appellate Court which arose out of judgment/decree dated31.03.2001 passed by the Civil Judge (Junior Division) in a civil suit filedfor a declaration and permanent injunction. The appellants herein werearrayed as respondent Nos.4 to 6 in the second appeal out of which thisappeal arises.C4.

4. The Single Judge of the High Court, however, by impugnedorder dated 26.09.2006 disposed of the second appeal in the light ofcompromise, which is said to have been arrived at between the parties.In other words, the second appeal was not decided on merits but disposedof in the light of compromise arrived at between the parties.

D5.The appellants herein felt aggrieved by the disposal of thesecond appeal and filed review petition but it was dismissed which hasgiven rise to filing of the present appeal by way of special leave againstthe order of disposing of the appeal and dismissing the review petition.

6. Having heard the learned counsel for the parties and on perusalEof the record of the case, we are inclined to allow the appeal in part andset aside the order passed in the review petition and permit the appellantsto file an application before the High Court for amending their reviewpetition, filed in disposed of second appeal, raising all their grievancesagainst the manner in which the second appeal came to be disposed ofin the light of alleged compromise to enable the High Court to decide theFreview petition afresh.

7. In this case, we prefer to follow this course keeping in viewthe bar contained in Order 23 Rule 3-A of the Code of Civil Procedure,1908 (for short ‘the CPC’) for filing the suit in a case of this nature andalso another bar created under Section 96 (3) of the CPC, which prohibitsGfiling of any appeal, though in this case it does not apply because thedispute arose in second appeal filed under Section 100 of the CPC.

8. The purpose in making reference to these two provisions is toshow the legislative intent which does not allow the parties to take recourseto these legal remedies to challenge the compromise once it is arrived atH

in the suit/appeal. The only exception being if the challenge is foundedon the ground of fraud committed by the parties in obtaining any judicialorders, the suit, in appropriate case, may lie.

9. In this case, we find that the High Court did not examine theplea of the appellants properly keeping in view the facts alleged in theapplication and while negativing the attack observed that the appellantsare free to take recourse to any other legal remedies. Since the secondappeal was disposed of affecting the rights of the parties in the light ofcompromise, the proper Forum to re-examine the issue, in our opinion, isthe High Court, which disposed of the second appeal rather than anyother Forum to examine the issue at this stage. It is more so when wefind that the High Court did not go into the details in the proceedingsfiled by the appellants in its correct perspective.

10. It is for this reason, we decline to examine the several factualand legal issues urged by the parties in this appeal and leave these issuesfor the High Court to examine afresh on merits in accordance with lawand dispose of the same.

11. The appeal thus succeeds and is allowed in part. The impugnedorder dated 29.01.2007 passed in Review Petition is set aside and theHigh Court is requested to decide the matter afresh on merits inaccordance with law without being influenced by any of our observationson merits which we have refrained from entering into them having formedan opinion to remand the case to the High Court for its disposal.

12. Needless to observe, in case, the learned Judge, who disposedof the second appeal, is not available to decide the matter, as directed bythis Court, the matter be placed before the appropriate Bench keeping inview the provisions of Order 47 Rules 1 and 5 of the CPC read with theHigh Court Rules governing disposal of the review cases.

13. The appellants are at liberty to amend the review petition or/and file fresh application raising all legally permissible grounds to attackthe order impugned therein. The respondents too are at liberty to raiseobjections in accordance with law.

Divya Pandey Appeal partly allowed.

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