The Patna High Court allowed a civil revision against an order rejecting a withdrawal application from a compromise. The Court held that parties can withdraw before recording consent and remanded the matter for disposal on merits.
Impugned order rejecting withdrawal application set aside; suit remanded for disposal on merits.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.636 of 2010
====================================================== Sabbir Khan son of late Abdul Hasan Khan, resident of village- Manjhali, P.S. Dumaria, District-Gaya at present resident of village Khatra, P.S. Dumaria, District- Gaya .... .... Petitioner/s Versus Sajjad Ahmad Khan son of Jalaluddin Ahmad Khan, resident of village Madarpur, P.S. Dumaria, District Gaya at present residing at village Majhauli, P.S. Dumaria, District- Gaya ………Opposite party ====================================================== Appearance : For the Petitioner/s : Mr. S. Jamul Akhtar, Adv. Mr. Arvind Kumar Sinha, Adv. For the Respondent/s : Mr. Sabir Ahmad, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER
5 01-10-2012 Heard Mr. Arvind Kumar Sinha, learned counsel for the petitioner and Mr. Sabir Ahmad learned counsel for the opposite party.
This civil revision application is directed against the order dated 20.04.2010 passed in Eviction Suit No. 2 of 2002 whereby the learned Munsif, Sherghati at Gaya has been pleased to reject the application filed on behalf of the petitioner who is the plaintiff in the Court below withdrawing himself from the compromise filed in the proceedings.
It is not in dispute that on 16.5.2005 a compromise petition was filed by the parties in the suit proceeding. Before the statement of the parties could be recorded in the compromise and the learned trial Court could record its satisfaction as regarding the
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consent of the parties on the compromise, the original plaintiff filed an application withdrawing from the compromise on 25.5.2005 but before this petition could be heard by the learned Court below the original plaintiff deceased on 15.4.2009 and was substituted by the present petitioner who is her son. The said application of the original plaintiff dated 25.5.2005 was moved and was heard on 20.4.2010 when the learned Court below has upon consideration of the contentions, rejected the application inter alia on grounds that once the consent was granted the plaintiff cannot withdraw from the same as no allegation of fraud has been made by the petitioner.
Mr. Ahmad, learned counsel for the opposite party has stated that the withdrawal application had not been filed by the plaintiff rather both the compromise as well as the application withdrawing from the compromise was filed on behalf of the plaintiff by her attorney. Mr. Ahmad has further submitted that the present compromise petition was filed in the light of another compromise filed in Title Suit No.90 of 2002 which is in contest between the parties.
Be that as it may, the fact remains that the compromise petition though filed, the statement of the parties were never recorded and before the Court could record its satisfaction on the
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compromise and the consent of the parties could be proved, the application for withdrawing from the compromise was filed by the original plaintiff through her attorney.
The provisions of Order 23 Rule 3 are self eloquent and in no uncertain terms provides for recording of compromise in a suit where it is proved to the satisfaction of the Court that the suit has been adjusted under the lawful agreement or compromise. The very existence of a withdrawal application by the plaintiff in the Court below, seeking withdrawal from the compromise, itself is sufficient proof of the discord between the parties and the presence of a discord cannot allow a proceeding to end in a compromise. Merely being a signatory to compromise petition is not sufficient and cannot be a sole ground for a Court to reject an application of a party withdrawing from the compromise unless the statement of all the parties is recorded by the Court concerned on the compromise and the consent of the parties to the compromise is proved. But before such a stage is reached, any party to a compromise can withdraw from the same and whereafter the Court below has to dispose of the suit on merits and in the light of the rival contentions, without acting upon the compromise.
The order impugned is contrary to the statutory provisions
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and cannot be upheld and is accordingly set aside. The trial Court below shall now proceed to consider and dispose of the suit on its merits and the basis of rival contentions advanced on behalf of the parties, in accordance with law.
This civil revision application is allowed.
(Jyoti Saran, J)
Bibhash/-
2 issues framed by the court
Whether a plaintiff can withdraw a compromise before the Court records the consent of parties.
Whether the trial Court was correct in rejecting the application to withdraw from compromise without recording consent.
1 provisions across 1 enactments
Sabbir Khan
Sajjad Ahmad Khan
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
