Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 1258 of 2018 Petitioner :- Jugal Narain Respondent :- Hari Narain And 4 Others Counsel for Petitioner :- Vyas Deo,Prakash Chandra Srivastava Hon'ble Manoj Kumar Gupta,J.
By means of instant petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 15.9.2017, whereby IInd Additional District Judge, Mirzapur dismissed the revision and upheld the order of the trial court dated 31.3.2015 by which application filed by Hari Narain, who was defendant no.2 in the suit, for setting aside the compromise decree, has been allowed.
The trial court, while allowing the application, has considered the explanation given by respondent no.1 for his non appearance. It has been noted in the impugned order that he met with a serious accident on 16.12.2010, resulting in multiple fractures on account of which, he was not in a position to move. The trial court has also noted in the impugned order that the suit was decreed on 17.8.2011 on the basis of a compromise between the plaintiff and defendant no.1, the petitioner herein. It has been observed that in the circumstances of the case, it would be in the interest of justice that the suit is decided on merits. While forming such an opinion, the trial court was fully conversant of the fact that the suit was not decided on merits but on the basis of alleged compromise, to which defendant-respondent no.1 was not a party. The contention of the petitioner that defendant-respondent no.1 has sold his entire share in the suit property was repelled by holding that in the compromise decree, a specific share was allotted to him, which would not have been there, had he sold his entire share. The revisional court, while dismissing the revision, has held that the suit was proceeding exparte against defendants no.2 to 5. In such circumstances, the trial court could have decided the suit exparte against those defendants and on merits against the petitioner, after recording evidence of the plaintiff and the petitioner. But it was not open to the trial court to decide the suit on basis of compromise between the plaintiff and defendant no.1 alone, to which defendants no.2 to 5 were not party. The revisional court has held that such a compromise decree was wholly illegal and therefore, on this additional ground the revisional court refused to interfere with the order of the trial court.
Counsel for the petitioner submitted that the suit was proceeding exparte against defendant-respondent no.1. He also moved an application seeking recall of the said order, but it was rejected. Thereafter another application was filed by him, whereby he again made an effort to get the order recalled, but again could not succeed. It is urged that in such circumstances, it could not be said that the defendant-respondent no.1 had no knowledge of the proceedings. He further submitted that without condoning the delay, application could not have been allowed.
Admittedly, the suit was decided not on merits but on the basis of a compromise. The compromise was signed by the plaintiff and the petitioner-defendant no.1.
The other defendants including defendant no.2 were not party to the compromise. However, in the compromise decree, they have not been exempted. The trial court, without considering the fact that defendant no.2 had not signed the compromise, had decreed the suit in terms thereof and which has the effect of partitioning the suit property wherein a specific share has been allocated to defendant no.2. The revisional court has rightly held that even if the suit was proceeding exparte against defendant no.2, it was not open to the trial court to decide the suit in terms of compromise wherein defendant no.2 was not a party. The order to proceed exparte does not mean that the defendant is precluded from participating in the subsequent stages of the proceedings or that the suit could be decreed on basis of compromise to which such person is not a party.
The trial court has also taken notice of the fact that defendant no.2 met with a serious accident and was on complete bed rest. The trial court has held that he was prevented by sufficient cause from appearing in the suit. Accordingly, the trial court has allowed the application on payment of a cost of Rs.1000/-. The trial court repelled the contention that there was delay in filing the application by observing that defendant no.2 had also prayed for condoning the delay in the same application. Accordingly, the trial court has set aside the order by which the suit has been decreed in terms of compromise to enable decision on merits.
This Court is of the opinion that there is no failure of justice to warrant interference in exercise of power under Article 227 of the Constitution, rather the order passed by the trial court sub-serves ends of justice. The findings and conclusions arrived at by the courts below are perfectly justified.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 27.2.2018 SL