BANWARI LAL versus SMT. CHANDO DEVI (THROUGH L.R.) AND ANR.

Citation: [1992] SUPP. 3 S.C.R. 524 · Decided: 11-12-1992 · Supreme Court of India · Bench: N.M. KASLIWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
·B 
.BANW ARI LAL 
v. 
SMT. CHANDO DEVI (THROUGH L.R.) AND ANR. 
DECEMBER 11, 1992 
[N.M. KASLIWAL AND N.P. SINGH, JJ.] 
Code of Civil Procedure, 1908: Order 23, Rule 3, Proviso and Explana-
tion-Withdrawal and adjustment of suit by parties-Compromise recorded 
and suit dismissed by trial court on the basis of petition of Compromise filed 
•C 
on behalf of appellant:-Subsequently· on the basis of application filed by 
plaintiff alleging that compromise was obtained by fraud Subordinate Judge 
recalling his earlier order-Validity of-High Court setting aside Subordinate 
Judge's recall order and restoring suit-Justification of-Amendment of Order 
23, Rule 3--Eff ect of. 
ID 
IE 
IF 
Order 23, Rule 3, Rule 3-A, Order 43, Rule 1-A(2), Sections 96(1) and 
(3) and 151.,-Appeal against order recording compromise-Right to-Effect 
of amendment introduced by Amendment Act of 1976-Explained. 
A suit filed by the appellant-plaintiff was dismissed by the trial 
court on the basis of a petition of compromise filed on behalf of the 
appellant. Subsequently, an application was filed on behalf of the ap-
pellant stating that no compromise had been filed by him and the 
Advocate engaged by him had colluded with one of the defendants and 
had played a fraud on him and that, as the alleged compromise itself 
was void, illegal and against the requirement of Rule 3 of Order 23 o.f 
the Code of Civil Procedure, the order recording such compromise be 
recalled and. suit restored and heard on merit. 
The Subordinate Judge, refering to different facts and circumstan-
ces of the case, including that. the compromise petition filed had not 
r-< 
been signed by both the parties as required by Order 23, Rule 3 of the 
J 
Code, recalled the order disposing of the suit in terms of the petition 
of compromise, and directed restoration of the suit to its original 
number. 
Aggrieved, the respondent filed a revision application before the 
~ High Court, which set aside the Subordinate Judge's order, saying that the 
524 
-
BANWARI LAL v. CHANDO DEVI 
525 
petition filed as petition of compromise was really an application filed on A 
behalf of the appellant for withdrawal of the suit under Order 23, Rule 1 
of the Code and as the appellant had voluntarily withdrawn the suit there 
I 
was no occasion to recall the order dismissing the suit, treating it to be an 
order under Order 23, Rule 3 of the Code. 
Against the High Court's order, the appellant-plaintiff file«J an E
appeal, by special leave, before this Court. 
On behalf of the respondent it was contended that the High Court 
was justified in holding that the suit had been simply withdrawn by the 
appellant under Rule 1 of Order 23 and it had not been compromised in C
terms of Rule 3 of the said Order 23; as such, the Subordinate Judge could 
not have recalled his earlier order and restored the suit to its original 
number, for being beard on merit. 
Allowing the appeal, this Court 
[ 
HELD: 1.1. It is clear from the copy of the petition of compromise 
that the terms and conditions of settlement and. agreement had been 
mentioned saying that both the parties had entered into a compromise 
because of which the appellant had thereafter no connection with
1 the 
disputed land and the respondent should be deemed to be in possession, 
and the owner of the disputed land. The prayer made in the said petition I-
also says that the compromise may be ordered to be accepted. On basis of 
that petition, the Court passed an order saying that the compromise had 
been accepted. In the order it has been mentioned that the suit of the 
appellant be "dismissed as per compromise deed". In view of these (acts 
and circumstances, it is difficult to bold that the Court allowed the suit to 
11 
be withdrawn in terms of Rule 1 of Order 23. The order of the Subordinate 
Judge on face of it purported to dismiss the suit of the appellant on the 
basis of terms and conditions mentioned in the petition of comprom~se. 
As such, the validity of that order has to be judge treating it to be an or;-der 
deemed to have been passed in purported exercise of the power conferred 
on the Court by Rule 3 of Order 23 of the Code. The Subordinate Judge ( 
should not have accepted the petition of compromise even if he bad no 
knowledge of the fraud alleged to have been practis~d on the appellant by 
his counsel, because, admittedly, the petition of compromise had not been 
signed either by the respondent or his counsel. This fact should ha

Excerpt shown. Read the full judgment & AI analysis in Lexace.