Urban Improvement Trust @APPELLANT@Hash Roshan Lal s/o Late Sukh Lal Chordiya

Appellant, Urban Improvement Trust, has preferred this second appeal to assail order dated 25.02.2011, passed by Additional District Judge No.3,

Udaipur, whereby its appeal against judgment and decree dated 22.09.2008, rendered by Civil Judge (Junior Division), City North, Udaipur (for short,

‘learned trial Court’) is dismissed as not pressed.

The facts, in brief, giving rise to this appeal are that at the threshold first respondent-plaintiff filed a suit for declaration and injunction against appellant

and proforma respondents before the learned trial Court. The suit was contested by appellant as well as other respondents and finally the learned trial

Court decreed the suit on 22.09.2008. Feeling dismayed with the judgment and decree passed by learned trial Court, the appellant preferred an appeal

before learned first appellate Court. On 25.02.2011, when the appeal came up for consideration before the learned first appellate Court, counsel

representing cause of the appellant submitted that Urban Improvement Trust has issued Patta in favour of respondent inspired by the concept of Lok

Adalat and therefore, appellant is not interested to pursue the appeal. Upon this candid disclosure by the counsel representing cause of the appellant,

counsel for the respondent too agreed and accordingly, the learned first appellate Court dismissed the appeal as not pressed.

I have heard learned counsel for the parties, perused the impugned order.

The first and the foremost question which has emerged for consideration of this Court is that whether the appellant can agitate its cause even after

withdrawal of first appeal within the four corners of Order 23 CPC.

While it is true that if any compromise has been entered into between the rival parties, which is unlawful or the very edifice of compromise is fraud,

then, certainly an aggrieved party can challenge the same by way of preferring an appeal before the appellate forum or can also apply before the

same Court for examining the legality of the compromise.

Although learned counsel appearing for the appellant has vehemently argued that the counsel representing cause of the appellant before the learned

first appellate Court was not instructed to withdraw the appeal but then he has not been able to satisfy as to what action is contemplated or taken

against the concerned erring lawyer.

Order 23 Rule 3 CPC envisages that if compromise is unlawful and it is edificed on fraud, then, it can be re-examined by the same Court or by the

appellate Court.

From the tenor of the order passed by learned first appellate Court, I am afraid it is not a case of any unlawful compromise or fraud being practiced

by the respondents for obtaining favourable disposal of the appeal. As a matter of fact, the counsel for the appellant himself has stated before the

learned first appellate Court that inspired by the concept of Lok Adalat, and in adherence of the judgment of learned trial Court, Patta has been issued

in favour of respondent and it is only upon his that submission, counsel representing the cause of the respondent also agreed that the matter has been

compromised. In this view of the matter, the argument of learned counsel for the appellant that it was a case of unlawful compromise, or the

compromise was actuated with fraud is per se not tenable. In substance, it was a case of voluntarily abondoning its right to persue the appeal by the

appellant.

Withdrawal of appeal by the learned counsel for the appellant was an unilateral act and counsel representing the cause of respondent did not make

any undue influence in this behalf, therefore, it would be rather difficult to comprehend that he has played any much less active role at this juncture.

Therefore, having regard to the facts and circumstances of the case, I am afraid, no question of law, much less substantial question of law, is involved

in the instant second appeal requiring adjudication by this Court.

Consequently, I find no reason to interfere with the impugned order and, accordingly, the appeal fails, and the same is hereby dismissed.