# Bithoori Lal v. State of U.P. through Secretary & others

- **Citation:** (2000) 3 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bithoori-lal-v-state-of-u-p-through-secretary-others-39554
- **Pages:** 6

## Text

3All] Bithoori Lal V. State of U.P. through Secretary & others
83
not vacant at all when Respondent no.
4 was allegedly issued appointment letter.

4. This Court does not intend to go
into
the
disputed
question
of
fact,
inasmuch as this petition can be decided
on a short ground. It si admitted at the Bar
that there is no material, as on date, to
indicate that whether appointment under
Dying
in
Harness
Rules
will
take
precedence over any other mode of
appointment (including by promotion etc.
or vice versa).

5. One fact, which is not disputed in
the instant case, is that wife of the
deceased was already employed. Para 6 of
the relevant Dying in Harness Rules, 1974
(Annexure-2 to the Writ Petition) shows
that certain procedure has to be adopted
before
a
dependant
of
a
deceased
employee could be given benefit of
appointment under Dying in Harness
Rules. Main emphasis is upon the financial
condition of the family.

6. Hence, this Court is of the opinion
that before appointment under Dying in
Harness Rules is proposed, the employer
must follow the procedure and undertake
an exercise to ascertain financial condition
of the family in question. The appointment
under Dying in Harness Rules is not
dependant merely upon one fact i.e. death
of an employee 'Dying in Harness'. To
seek benefit of employment under Rules,
1974 family must be distress- which must
be ascertained as a fact.

7. Since there is nothing on record to
indicate that requisite procedure was
adopted and whether condition precedent
existed-viz
family
in
distress,
no
appointment under 'Dying in Harness
Rules 1974' could be made in favour of
Respondent no. 4. Petitioner has also
failed to substantiate that appointment by
promotion is to take precedence over
appointment on compassionate grounds
under an Dying in Harness Rules.

8. I, accordingly, direct that the
matter may be decided by the Director
Local
Bodies,
U.P.
Lucknow
after
affording opportunity of hearing to the
concerned parties.

9. Consequently, I direct that if the
concerned
party/parties
files
a
representation
before
Director
Local
Bodies, U.P., Lucknow in writing (along
with certified copy of this order as well as
complete paper book of the writ petition)
within six weeks from today, the said
authority shall decide the matter after
affording opportunity of hearing to the
parties concerned by a speaking order
preferably within four months of the
receipt of the representation.

10. Till the decision on the
representation as indicated above, interim
order dated 13.5.1999 passed by this Court
shall continue.

11. Writ petition is party allowed
subject to the observations made above.

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84
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By the Court

1. This is plaintiffs second appeal
against the judgment and decree passed by
the trial court dismissing the Original Suit
No. 155 of 1989 and the decree of the
lower
appellate
court
affirming
the
judgment and decree of the trial court.

2. In short the facts are that the Small
Cause Suit No. 18 of 1987 which was filed
against the present appellants by the Gaur
Brahman Sabha, Kashipur - respondent
no. 1 was decreed in terms of compromise
dated 24.7.87. The present plaintiffs
appellants filed suit No. 155 of 1989 for
cancellation of the decree dated 24.7.87 in
the said Suit on the ground that the
compromise was obtained by coercion
fraud etc. The trial court dismissed the suit
mainly on the ground that the suit was not
maintainable in view of the provisions of
Order 23 Rule 3-A of the Code of Civil
procedure.
The
plaintiffs
appellants
preferred an appeal. The lower appellate
court
re-appraised
the
evidence
and
recorded a finding of fact that the
compromise decree was not obtained by
playing fraud or by exercise of undue
coercion upon the plaintiffs. The lower
appellate court also held that the suit was
not maintainable. The lower appellate
court consequently dismissed the appeal.

3. Sri Murli Dhar, learned Senior
Counsel appearing for the appellants has
been heard at length at the admission
stage. He has submitted that there are
conflicting decisions whether in such cases
the provisions of Rule 3-A of Order 23
C.P.C. were attracted or not. He has also
submitted that the trial court had not
recorded the finding on the question
whether the compromise was obtained by
playing fraud and exercise coercion. The
lower
appellate
court
should
have
therefore. Remanded this matter to the trial
court.
3All] Durga Prasad Tandon & others V. Gaur Bramhan Sabha Zila Nainital & others
85

4. Having heard learned counsel for
the appellants and having gone through the
two judgment of the courts below. I find
that there is no merit in this appeal. It is
true that the trial court framed Issue no. 1
to the effect that whether compromise
dated 24.7.1987 was not legal. The trial
court, however, did not recorded any
findings on this issue even through
evidence of the parties was there. The trial
court relying upon a decision of the
Hon'ble Supreme Court in Banwari Lal
Vs. Smt. Chando Devi A.I.R 1993
Supreme Court 1139 held that the suit was
not maintainable. The Lower appellate
court, however recorded finding on issue
No. 1 after examining the evidence
adduced by the parties. In arriving its
finding the lower appellate court besides
considering other evidence. Had placed
reliance upon two material facts viz. A
term of the compromise decree was that a
defendant shall vacate the suit property on
expiry of two years from the date of the
compromise and in that event the plaintiff
in Suit No. 18 of 1987 will not claim
arrears of rent damages from the
defendants in that suit. The lower
appellate court had observed in its
judgment that a sum of Rs.1,000/- was
deposited by the defendants as arrears of
rent and mesne profits in the trial court to
escape consequences of decree of the
ejectment. After the said compromise was
entered into between the parties, the
present plaintiffs appellants moved an
application 37-C for refund of the said
amount on the ground that with the
intervention
of
certain
persons
a
compromise has been arrived at and that
the
defendants
applicants
have
been
granted time till 1.8.1989 to vacate the suit
property and further that the plaintiffs have
exonerated
the
defendants
from
the
liability of arrears of rent, expenses of
litigation etc. Another circumstance or
material evidence relied upon by the lower
appellate court was that even though there
were allegations of coercion and it was
alleged that the police had forced the
defendants to enter into compromise on
threat of being implicated in certain cases
yet the plaintiffs allowed the two years
period to lapse and it was only after lapse
of the said period that they file the present
suit. The evidence of the parties was
already there, the lower appellate court in
my view committed no error in appraisal
of the evidence and in recording the fact
on Issue no.1 It has been fairly conceded
that the finding on issue no.1 cannot be
challenged on ground of its suffering from
perversity. In the circumstances if the
lower appellate court scrutinized the
evidence and on appraisal of the same had
recorded findings of fact, the lower
appellate court cannot be said to have
acted with illegality in not remanding the
matter to the trial court. Therefore, in my
view, there is no force in the submission of
the learned counsel for the appellants that
the lower appellate court in the facts and
circumstances of the present case should
have remanded the matter to the trial court.

5. Now coming to the main question
whether in the facts and circumstances of
the present case, the provisions of Rule 3A of Order 23 C.P.C. are attracted or not,
it would be proper to reproduce the
provisions contained in Order 23 Rule 3-A
and explanation to Order 23 Rule 3. Rule
3-A reads as follows :

"3-A Bar to Suit - No suit shall lie to set
aside a decree on the ground that the
compromise on which the decree is bases
was not lawful."
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
86
Explanation to Rule 3 of Order 23
reads as follows :

"An agreement or compromise which
is void or voidable under the Indian
Contract Act 1872 (9 of 1872), shall not be
deemed to be lawful within the meaning of
this rule."

6. A compromise decree in the
instant suit was challenged on the ground
that it was obtained by playing fraud and
exercise of coercion. Such a compromise
is voidable under the provisions of the
Indian Contract Act. The explanation to
Rule 3 as quoted above declares that a
compromise which is void or voidable
under the Indian Contract Act shall not be
deemed to be lawful within the meaning of
Rule-3. If the provisions of Rule 3-A are
read with explanation to Rule-3 it would
be abundantly clear that a compromise
obtained by playing fraud or exercise of
coercion is not a lawful compromise and
therefore suit for setting aside the decree
on such a ground is barred by the
provisions of Rule 3-A of Order 23. There
is thus no ambiguity. It is true that the
decree in a suit passed in accordance with
the compromise is not appealable under
Section 96 of the Code of Civil Procedure.
Earlier such a decree was appealable under
Order
43(1)(m).
By
Subsequent
amendment, Order 43 Rule I (m) has been
deleted. However, another Rule I-A has
been introduced in Order 43. The said Rule
I- A provides that whether any order is
made under this code against a party and
thereupon any judgment is pronounced
against such party and a decree is drawn
such party may in an appeal against the
decree, contend that a such order should
not have been made and judgment should
not have been pronounced. Sub Rule (2)
of Rule I-A (of O.43) provides that an
appeal against a decree passed in a suit
after recording a compromise or refusing
to record a compromise, it shall be open to
the appellant to contest the decree on the
ground that compromise should, or should
not, have been recorded. Thus, if a decree
passed under Order 23 Rule 3 C.P.C. was
challenged, it would have been challenged
by filing appeal under Order 43 Rule I - A
.
7. The trial court while holding that
the suit was not maintainable has relied
upon the decision of the Apex Court in
Banwari Lal Vs. Smt. Chando Devi and
another, A.I.R 1993 Supreme Court 1139.
That was a case in which a compromise
petition was filed on behalf of the
appellant stating that both the parties have
entered into a compromise on the basis of
which the appellant had delivered
possession of the land to the respondent. A
prayer
was
made
in
view
of
the
compromise arrived at between the parties
the suit be dismissed. The compromise
petition had not been signed by the
contesting defendant or by his counsel. An
endorsement was made by one Sri Soran
Ram, Advocate that 'Thumb impression
has been marked in my presence.' 'The
trial court on the statement of the counsel
of the plaintiff that the suit of the plaintiff
be
dismissed
as
withdrawn
as
per
compromise deed Exhibit -C and that
possession of the property has already
been delivered to the defendant and that
defendant no.2 Smt. Chando Devi is in
possession of the disputed land as owner
as per compromise deed Exhibit _ C and
decree - sheet be prepared accordingly.
The plaintiff/appellant thereafter filed an
application alleging that the counsel Sri
Soran Ram, Advocate collusion with
defendant no.2 had played fraud on the
appellant by filing a fabricated petition of
compromise although no compromise had
3All] Durga Prasad Tandon & others V. Gaur Bramhan Sabha Zila Nainital & others
87
been effected between the appellant and
the respondent. The details of the fraud
were mentioned in the said petition and it
was alleged that since the compromise
itself was void, illegal and against the
requirement of Rule of Order 23 of the
Code
of
civil Procedure, the order
regarding such compromise be recalled
and the suit be restored and be heard on
merit. The trial court having heard learned
counsel for the parties and considering the
various circumstances recalled the order
disposing of the suit in terms of the
compromise and he directed restored of the
suit to its original number. Against the
order passed by the Trial Judge, a revision
was filed before the High Court by the
defendant and a Single Judge of the High
Court set aside that order holding that the
alleged compromise application was really
an application for withdrawal of the Suit
under Order 23 Rule I of the Code and as
the plaintiff had voluntarily withdrawn the
suit there was no occasion to recall the
order treating it to be an order under Order
23 Rule 3 of the code. The plaintiff
thereafter filed Civil Appeal before the
Apex Court. The Apex Court on
consideration
of
the
provisions
of
explanation to Rule 3 and Rule 3-A held
that " a suit used to be filed for setting
aside such decree on ground that the
decree is based on an invalid and illegal
compromise not binding on the plaintiff of
the Second Suit. But after the amendments
which have been introduced, neither an
appeal
against
the
order
recording
compromise nor remedy by way of filing a
suit is available in case covered by Rule 3A of Order. As such a right has been given
under Rule I -A (2) of Order 43 to a party
who challenges the recording of the
compromise
to
question
the
validity
thereof while preferring an appeal against
the decree. Section 96 (3) of the code shall
not be a bar to such an appeal because
Section 96 (3) is applicable to cases where
the factum of compromise or agreement is
not in dispute."

8. The Court further held that the
order on the face of it purported to dismiss
the suit on basis of the terms and
conditions mentioned in the petition of
compromise. As such the validity of the
order has to be judged treating it to be an
order deemed to have been passed in
purported exercise of the power conferred
on the court by Rule 3 of Order 23 of the
Code. Learned sub-ordinate judge should
not have accepted the said petition of
compromise even it had no knowledge of
fraud alleged to have been practised on the
appellant
by
his
counsel,
because
admittedly the petition of compromise had
not been signed either by the respondents
or his counsel. This fact should have been
discovered by the court. The court further
held that "as such a party challenging a
compromise can file a petition under the
proviso to Rule 3 of Order 23 or appeal
under Section 96 (1) of the Code in which
he can now question the validity of the
compromise in view of Rule I-A of Order
43 of the Code."

9. It is true as suggested by Sri Murli
Dhar, learned Senior counsel that in the
case before the Supreme Court, as the fact
state above disclosed, the question was
whether application for recalling the
decree or order accepting the compromise
was an application under Order 23 Rule 3
C.P.C. or under Order 23 Rule I C.P.C.
The court held that it was an application
under the explanation of Order 23 Rule 3
C.P.C.. But the court also held on
consideration of the provisions of Rule 3A that suit challenging the compromise
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
88
decree as invalid and illegal was barred by
provisions of Rule 3-A.

10. Reference has also been made to
a decision of the Karnataka High Court in
S.G. Thimmmappa Vs. T. Anantha and
others, reported in A..R. 1986 Karnataka in
which it was held that rule 3 -A of Order
23 does not include suits where the
compromise
decree
is
challenged on
grounds
like
void
undue
influence
coercion by which the decree can be
avoided treating it as voidable. With
respect it may be pointed out that while
holding that till the decree is avoided or
displaced it can be treated as lawful for
the limited purpose of Order 23 Rule 3
C.P.C., the court did not notice the
provisions of the explanation to Rule 3 of
Order 23. Besides this, in view of the
decision of the Hon'ble Supreme Court in
Banwari Lal's case (supra) the decision in
S.G. Thimmappa's case (supra) rendered
by Karnataka High Court stands implidely
over ruled and is no more good law. S.G.
Thimmappa's case was also considered by
the Rajasthan High Court in Gopal Lal Vs.
Babu Lal and others 1997 (I) Civil Court
Cases - 8 (Rajasthan) and it was held that
the decision in that case cannot be held to
be correct view in the light of the decision
of the Hon'ble Supreme Court in the case
of Banwari Lal (supra).

11. For the reasons stated above, I
am of the View that there is no error of law
in the judgement and decree passed by the
Lower appellate court. No. substantial
question of law is involved in this appeal
merits dismissal.

12. Appeal is hereby dismissed at the
admission stage.
Appeal Dismissed.

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SODLQWLII(Para 5)

By the Court

1. This is defendant's second appeal
arising out of the original suit No.30 of
1994 (Smt. Usha Bala Srivastava vs. Rama