Ved Pal (d) Through Lrs & Ors. v. Prem Devi (d) Through Lrs & Ors.
ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 26.09.2006 passed by the
High Court of Punjab & Haryana at Chandigarh in R.S.A. No.4576 of
2003 whereby the High Court disposed of the second appeal in terms of
the compromise arrived at between the parties and decree d the suit.
Against the said order, the appellants herein filed Review Application
VED PAL (D) THROUGH LRS & ORS. v. PREM DEVI (D)
THROUGH LRS & ORS.
No.75-C of 2006 in R.S.A. No.4576 of 2003 which was dismissed by
the 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 the
High Court challenging the judgment and decree dated 01.02.2003 passed
by the First Appellate Court which arose out of judgment/decree dated
31.03.2001 passed by the Civil Judge (Junior Division) in a civil suit filed
for a declaration and permanent injunction. The appellants herein were
arrayed as respondent Nos.4 to 6 in the second appeal out of which this
appeal arises.
4. The Single Judge of the High Court, however, by impugned
order dated 26.09.2006 disposed of the second appeal in the light of
compromise, which is said to have been arrived at between the parties.
In other words, the second appeal was not decided on merits but disposed
of in the light of compromise arrived at between the parties.
5. The appellants herein felt aggrieved by the disposal of t he
second appeal and filed review petition but it was dismissed which has
given rise to filing of the present appeal by way of special leave against
the order of disposing of the appeal and dismissing the review petition.
6. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal in part and
set aside the order passed in the review petition and permit the appellants
to file an application before the High Court for amending their review
petition, filed in disposed of second appeal, raising all their grievances
against the manner in which the second appeal came to be disposed of
in the light of alleged compromise to enable the High Court to decide the
review petition afresh.
7. In this case, we prefer to follow this course keeping in view
the 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 and
also another bar created under Section 96 (3) of the CPC, which prohibits
filing of any appeal, though in this case it does not apply bec ause the
dispute arose in second appeal filed under Section 100 of the CPC.
8. The purpose in making reference to these two provisions is to
show the legislative intent which does not allow the parties to take recourse
to these legal remedies to challenge the compromise once it is arrived at
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in the suit/appeal. The only exception being if the challenge is founded
on the ground of fraud committed by the parties in obtaining any judicial
orders, the suit, in appropriate case, may lie.
9. In this case, we find that the High Court did not examine the
plea of the appellants properly keeping in view the facts alleged in the
application and while negativing the attack observed that the appellants
are free to take recourse to any other legal remedies. Since t he second
appeal was disposed of affecting the rights of the parties in the light of
compromise, the proper Forum to re-examine the issue, in our opinion, is
the High Court, which disposed of the second appeal rather than any
other Forum to examine the issue at this stage. It is more so when we
find that the High Court did not go into the details in the pr oceedings
filed by the appellants in its correct perspective.
10. It is for this reason, we decline to examine the several factual
and legal issues urged by the parties in this appeal and leave these issues
for the High Court to examine afresh on merits in accordance with law
and dispose of the same.
11. The appeal thus succeeds and is allowed in part. The impugned
order dated 29.01.2007 passed in Review Petition is set aside a nd the
High Court is requested to decide the matter afresh on merits in
accordance with law without being influenced by any of our observations
on merits which we have refrained from entering into them having formed
an opinion to remand the case to the High Court for its disposal.
12. Needless to observe, in case, the learned Judge, who disposed
of the second appeal, is not available to decide the matter, as directed by
this Court, the matter be placed before the appropriate Bench keeping in
view the provisions of Order 47 Rules 1 and 5 of the CPC read with the
High 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 attack
the order impugned therein. The respondents too are at liberty to ra ise
objections in accordance with law.
Divya Pandey Appeal par tly allowed.
VED PAL (D) THROUGH LRS & ORS. v. PREM DEVI (D)
THROUGH LRS & ORS. [ABHAY MANOHAR SAPRE, J.]