Ved Pal (D) Tr.Lrs.. vs Prem Devi (D) Tr.Lrs..

Ved Pal (D) through LRs & Ors. ….Appellant(s)

VERSUS

Prem Devi (D) through LRs & Ors. …Respondent(s)

J U D G M E N T

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

Signature Not Verified compromise arrived at between the parties and Digitally signed by ANITA MALHOTRA Date: 2018.08.10 17:14:13 IST Reason: decreed the suit. Against the said order, the

1 appellants herein filed Review Application No.75­C

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

2 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 the 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

3 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

3­A 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 because 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 in the suit/appeal. The only exception

4 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 the 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 proceedings

filed by the appellants in its correct perspective.

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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 and 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

6 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 raise objections in accordance with law.

………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [S. ABDUL NAZEER]

New Delhi;

August 10, 2018

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