JUDGMENT Barkat Ali Zaidi, J.
1. The plaintiffs-respondents filed an Original Suit No. 150 of 1975 in the Court of Munsif, Sitapur with regard to partition of a plot, shown by letters A, B, C, D in the map appended with the plaint, situated in Pargana Hargaon GanJ, Tehsil and district Sitapur, alleging it as a Joint Hindu Family property, purchased out of the earnings of Joint Hindu Family business in the year 1949. The plaintiff alleged that the plot was recorded in Revenue Papers in the name of defendant Prabhu Dayal being the karta of the family in which the plaintiffs had half share which the defendants denied.
2. In their written statements, the defendants denied the allegations of there being any joint family business between the father of the plaintiffs and Prabhu Dayal, claiming the plot was purchased by Prabhu Dayal out of his own earnings and since then he was in exclusive possession of the said plot.
3. During the pendency of the suit, the plaintiffs alleged, that the parties had come to terms and filed a compromise (paper No. 15 Ka-1) in the Court of Munsif on 9.3.1976 which was not verified. The defendant denied to have entered any such compromise at any point of time at the stage of evidence.
4. Munsif Sitapur after recording the evidence of both the parties and hearing them, decreed the suit of the plaintiffs for partition and negatived the factum of compromise between the parties.
5. The defendants challenged the decree dated 13.12.1998 passed by Munsif, by preferring Civil Appeal No. 20 of 1979, which the Civil Judge dismissed vide judgment dated 18.8.1989.
6. This is how the defendants have come up before the High Court, raising the following substantial questions of law.
(a) Whether, in view of the fact that the plaintiffs themselves alleged that the plot in dispute was acquired from Mahewa Estate in 1949 which was recorded in the name of Parbhoo Dayal, father of the defendant, alone and therefore, the decree which had been passed in favour of the defendant in Case No. 106 of 1963, Mahewa Estate v. Parbhoo Dayal, by the Munsif Sitapur, itself proves that the land in dispute was acquired by Prabhoo Dayal alone and the plaintiffs have no concern with the disputed plot?
(b) Whether, the decree is admissible in evidence under Section 13 of the Evidence Act to show that the Mahewa Estate also had accepted Parbhoo Dayal as the person whose land in dispute was given by the Mahewa Estate?
(c) Whether, the compromise which had not been accepted by the trial court, and thereafter the trial court had proceeded with the case and decided the same after taking evidence has any binding effect on the parties?
(d) Whether, the learned Court below committed an error in decreeing the plaintiffs" suit in the absence of any cogent proof that the family was joint and the plot in dispute was acquired by both the parties?
7. Before the appeal could be heard, this Court by passing an order dated 6.11.1984, contained hereinafter, remitted the case to the trial court to return a finding on the alleged compromise dated 9.3.1976 (Paper No. 15 Ka-1).
From a perusal of the judgment rendered by the lower appellate court is appears that the dispute between the parties was compromised before the trial court by means of an application under Order XXIII, Rule 3 of the Code of Civil Procedure. The compromise application is paper No. 15 Ka-1. The learned Judge has not recorded a categorical finding whether the compromise filed, complied with the requirements of Order XXIII, Rule 3, C.P.C. Instead of that the Court below has come to a finding that the compromise is binding between the parties on the basis of other evidence led by the parties in the suit. This approach made by the Court below is not correct. The requirements of Order XXIII, Rule 3, C.P.C. are that if the controversy between the parties has been adjusted by a compromise the Court has to record a clear finding whether the requirements of Order XXIII, Rule 3, C.P.C. has been complied with. This has not been done by the lower appellate court. This infirmity in the judgment rendered by the lower appellate court cannot be countenanced.
I accordingly direct that Civil Judge, Sitapur shall record a categorical finding whether terms of Order XXIII, Rule 33, C.P.C. have been complied with and the compromise filed by the parties is binding or not. This finding should be recorded after examining the parties and such other evidence as they choose to lead to ascertain whether the terms of the compromise have been entered into and the requirements of Order XXIII, Rule 3, C.P.C. have been complied with. The Court will submit its finding to this Court within three months from the date of receipt of the record. The parties are directed to appear before the Civil Judge, Sitapur on 26.11.1984. In the meantime, the office shall see that the record of the case is transmitted to Civil Judge, Sitapur at once as that the same this available to the Court on 26.11.1983.
8. The learned Civil Judge vide his order dated 9.5.2005 returned the finding, holding the compromise was not a voluntary one the provisions of Order XXIII, Rule 3 of Civil Procedure Code were not complied with. Plaintiff Shrawan Kumar was a minor at the time of the alleged compromise and the leave was not obtained from the Court prior to enter the compromise which was thus not binding on the parties. The Civil Judge (Senior Division) further noted that the parties had entered into a fresh lawful compromise (Paper No. 80-Ka 1) signed by the parties before him on 4.5.2005, on which he has recorded his satisfaction.
9. I have heard the arguments of Sri Mohd. Abid All and Sri H.S. Sahai, learned Counsel for the appellant and respondents respectively.
10. The counsel for the respondents has raised two objections to the compromise (Paper No. 80 Ka-1).
(i) That the compromise should not have been filed in the trial court because the suit was not pending there and should have been filed in second appeal, in the High Court.
(ii) That the decree which has been passed earlier in the suit and affirmed in the first appellate court subsists and the compromise will not set aside the same.
11. As regards the first contention, it needs to be stated that it has been the consistent policy of law, to make the parties adhere to a compromise, and this policy is based on the triangular principles of Equity, Justice and Fair Play. Minor technicalities like the one, raised here, should not obstruct the enforcement of a compromise, which has been arrived, between the parties.
12. A forum is not a necessary feature of a compromise. The parties to a suit when arrive on a compromise,' even outside the Court, can agree that the matter in issue is settled between them by the compromise and the suit will be allowed to lapse. In a situation like that the compromise between the parties, which is in the nature of a contract will be enforceable. The question of Forum is, therefore, not always significant. In fact, the Court must encourage compromises which wind up litigation amicably between the parties. Such objection, as has been raised here, should not be allowed to impede the implementation of a compromise.
13. As regards the second point raised by the counsel for the respondents, it has to be noticed that when a matter about which the parties are litigating is settled by a compromise, the other consequences which naturally and can invariably follow from the compromise will come into operation. If the result of the compromise is that the decree should become infructuous, or whatever it may be, that will automatically happen and the compromise, will over shadow the decree and the decree will no more be enforceable because of the compromise. The compromise cannot be thwarted on such fragile ground and in these matters, natural legal consequences must be allowed to flow.
14. Both the aforesaid submissions are, therefore, found without substance and the compromise, on which the Civil Judge (Senior Division) has already recorded his satisfaction, will be allowed to hold ground.
15. The dispute between the parties is thus decided in terms of compromise (Paper No. 80-Ka 1) dated 4.5.2005, on record which shall form part of the decree, and, a formal order shall accordingly be prepared.
16. Appeal decided accordingly. Costs made easy.