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Nathi Lal (Since Deceased) & Others v. Ashok Kumar & Others - MATTERS UNDER ARTICLE 227 No. 107 of 2005 [2007] RD-AH 1008 (16 January 2007)


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Court No.6

Civil Misc. Application No.107 of 2005

Nathi Lal (since deceased) and others                ................Petitioners


Sri Ashok Kumar  and others                     .......................Respondents

Hon'ble Tarun Agarwala, J.

Heard the learned counsels for the respondents.

A suit for prohibitory injunction and for possession was filed in the year 1969. This suit is still pending. There are allegations and counter allegations levelled by all the parties that the suit is being delayed at the behest of one party or another for reasons best known to them.

It transpires that the respondent Nos. 2 to 7 were impleaded as defendants in the suit in the year 2004 and immediately thereafter they filed an application under Order 23 Rule 3 of the C.P.C. for the withdrawal of the suit on the basis of an alleged compromise entered into between the plaintiffs and the defendants. This application was rejected by the trial court on the ground that there was a delay of more than 10 years in filing the application. The trial court relied upon a decision in AIR 1961 Madhya Pradesh 245, Firm Ramachandra Mathuralal vs. Kalusingh Nathraj, in which it was held that where a compromise was arrived at during the pendency of a suit, the plaintiff should not proceed with the suit and should ask the court to record the compromise and satisfy itself that the compromise was genuine. The Court further held that where the plaintiff changed his mind and the other party also acquiescesed to it, the compromise moved at a later stage was washed away by their conduct. Relying upon the aforesaid judgment, the trial court, rejected the application, on the ground, that by the conduct of the parties, the compromise having been filed after a lapse of 10 years, became immaterial and could not be taken into consideration and that the suit should be decided on merit.

The  applicants, being aggrieved, by the order of the trial court filed a revision which was allowed and the matter was remitted back


to the trial court to decide the application afresh in the light of the observation made therein. The plaintiff, being aggrieved by the aforesaid order, has filed the present writ petition on the ground that the compromise alleged to have been arrived at, having been filed  after an inordinate delay, could not be taken into consideration and that,  in any case, all the defendants were not parties to the said compromise. Further the alleged compromise was executed between some of plaintiff and the applicants at the time when the said applicants were not parties to the suit, and therefore, such an application could not be considered under Order 23 Rule 3 of the C.P.C.

In my opinion, it is open to the petitioner to raise all such grounds before the trial court where the application would be decided afresh upon the remand being made by the revisional court. This Court is not inclined to interfere in the order of the revisional court. However, it is made clear that the trial court would not be influenced  by any finding or observation made by the revisional court while deciding the application afresh on merit and it will be open to the parties to raise all kind of arguments before the trial court.

The writ petition is dismissed with the aforesaid observation.

Since the suit is of the year 1969, I direct the trial court to decide the suit on a day to day basis.




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