Daya Nand vs Har Lal

R.L. Anand, J.—This appeal has been directed against the order dated 15th January, 1987 passed by the Additional District Judge, Narnaul, who accepted the appeal of Har Lal and set aside the judgment and decree dated 14th October, 1986 passed by Sub Judge, 1st Class, Narnaul and remanded the matter to the trial Court.

The brief facts of the case are that Civil Suit No. 328 of 1986 was filed by Shri Har Lal seeking declaration and injunction that the decree dated 29th August, 1985 passed in Civil suit No. 619 of 1985 was illegal, based on fraud and misrepresentation and not binding on him. A compromise decree was allegedly passed between Har Lal and Daya Nand in Civil Suit No. 619 of 1985. As per that decree the parties to that suit exchanged some piece of land. Shri Har Lal has made the challenge to the said decree on the plea that the judgment and decree dated 29th August, 1985 was a result of fraud and misrepresentation and that it was null and void and illegal and was not binding upon him.

Precisely speaking his allegation is that he never appeared before the Court and never made any statement and somebody else had appeared on his behalf and in these circumstances, he was not bound by the judgment and decree dated 29th August, 1985.

The suit of Shri Har Lal was contested on the plea that the compromise which has been entered into between the parties was lawful and it was a voluntary act of the plaintiff and no fraud and misrepresentation has been made and in these circumstances, the suit of the plaintiff is barred under Order 23 Rule 3-A of the CPC because the compromise aforesaid was lawful.

The plaintiff filed rejoinder to the written statement in which he reiterated his averments made in the plaint and denied the pleas taken in the written statement.

The learned trial Court framed a preliminary issue which reads as under:-

"Whether the suit is maintainable despite the bar created by Order 23 Rule 3-A Civil Procedure Code? OPP"

The trial Court vide judgment and decree dated 14th October, 1986 dismissed the suit by holding that there is a clear bar under Order 23 Rule 3-A CPC and the reasons given by the trial Court are contained in para Nos. 5, 6, and 7 of its judgment.

Aggrieved by judgment and decree of the trial Court the plaintiff filed the first appeal in the Court of Additional District Judge, Narnaul who set aside the judgment and decree of the trial Court for the reasons given in para Nos. 6, 7, 8 and 9 of the impugned judgment and remanded the case to the trial Court with the direction to re-admit the suit to its original number and then to proceed with the same in accordance with law.

Aggrieved by the judgment of the first appellate Court dated 15th January, 1987, Daya Nand appellant has filed the present appeal. 10. I have heard Shri S.K. Mittal, counsel for the appellant and Shri Akshay Bhan, counsel for the respondent and with their assistance have gone through the record of this case.

The plea of bar under Order 23 Rule 3-A CPC was a mixed question of law and fact and in these circumstances, it was not proper on the part of the learned trial Court to frame the preliminary issue and dispose of the suit on that issue. He ought to have framed all the issues and then to decide the case on law and facts. He also ought to have afforded the opportunity to the parties to lead their evidence in support of their allegations.

The trial Court has forgotten this fact that in order to know whether the suit of plaintiff was legally maintainable or not, he was supposed to go through the allegations made in the plaint. It is the specific case of the plaintiff before the trial Court that the decree dated 29th August, 1985 was obtained by fraud and misrepresentation and that he never appeared before the said Court at the time of passing of the decree and somebody else had allegedly made a statement on his behalf. In these circumstances, it was obligatory on the part of the trial Court to record the evidence on fact with regard to the allegations which have been levelled by the plaintiff in the plaint in the trial Court.

In these circumstances, the order of the learned Sub Judge is not legal and tenable and is liable to be reversed. I do not want to give any opinion whether the suit is barred under Order 23 Rule 3-A CPC because any finding of this Court would prejudice the case of the parties. Thus, the order of the learned Sub Judge and that of the first appellate Court are hereby set aside with directions to the trial Court to re-admit the suit to its original number and to frame all the issues of law and facts and afford the opportunities to the parties to lead evidence on those issues and then to decide the suit on merits. Since the institution of the suit relates to the year of 1986 the directions are also given to the trial Court to decide the suit as early as possible preferably within 1-1/2 years from the date of the receipt of the copy of this order. There shall be no order as to costs.

The present appeal stands disposed of accordingly.

The parties are directed to appear before the trial Court on 16th September, 1999.