# Jageshwar Dayal & Ors v. Rajjan Lal

- **Citation:** (2019) 2 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Case number:** Second Appeal No. 554 of 2005
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jageshwar-dayal-ors-v-rajjan-lal-44751
- **Pages:** 11

## Headnote

A. Court Fees Act, 1870 - Section 6(2) -
Deficiency of court fees - In the presence
of deficiency of court fees - Court cannot
proceed with the suit.
Held: - Court can enter into the merits and
proceed with the suit only after full court fee is
paid - Adjudication of the claim - cannot be
proceeded if there is Deficiency of court fee.
 (Para 34)

B. Code of Civil Procedure, 1908 - Order
XXIII Rule 3 CPC - Compromise of suit -
Provision is mandatory.
Held: -Satisfaction of the Court, should be
duly recorded, in regard to the willingness of
the parties to compromise the suit, and lawful
nature of the agreement. The identities of the
parties, as well as their signatures should be
fully established before the court - Satisfaction
of these conditions precedent to a valid
compromise should be reflected in clear
findings of the court. (Para 41)
Omission to return independent findings regard
to the willingness of the parties to compromise
the suit, and lawful nature of the agreement
makes the order perverse. Findings on the
identities of parties, identification of signatures
and the respective counsels, lack material
particulars and are vague. (Para 42 & 47)
Second Appeal allowed (E-5)
Cases relied upon: -

1.Mt. Asghari Begum Vs Fasihuddin AIR 1934
All. 989

2.Pradeep Kumar & anr. Vs Vishnu Kumar &
ors. 2018 All. C.J. 2560

3.Hamid Hussain Khan Vs Masood Hussain
Khan & ors. AIR (39) 1952 All. 279

4.Harmndeep Singh Vs Swaran Singh 2009
Law Suit (P&H) 640

## Text

2 All. Jageswar Dayal & Ors. Vs Rajjan Lal
803
with a copy of this judgment for
necessary action, if any, after preparation
of decree.
----------

(2019)10ILR A 803

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Second Appeal No. 554 of 2005

Jageshwar Dayal & Ors. ...Appellants
Versus
Rajjan Lal ...Respondent

Counsel for the Appellants:
Sri B. Dayal, Sri V. Sahai, Sri Aman
Mehrotra

Counsel for the Respondent:
Sri A.N. Bhargava, Bharti Kashyap, Rajni
Ojha

A. Court Fees Act, 1870 - Section 6(2) -
Deficiency of court fees - In the presence
of deficiency of court fees - Court cannot
proceed with the suit.
Held: - Court can enter into the merits and
proceed with the suit only after full court fee is
paid - Adjudication of the claim - cannot be
proceeded if there is Deficiency of court fee.
 (Para 34)

B. Code of Civil Procedure, 1908 - Order
XXIII Rule 3 CPC - Compromise of suit -
Provision is mandatory.
Held: -Satisfaction of the Court, should be
duly recorded, in regard to the willingness of
the parties to compromise the suit, and lawful
nature of the agreement. The identities of the
parties, as well as their signatures should be
fully established before the court - Satisfaction
of these conditions precedent to a valid
compromise should be reflected in clear
findings of the court. (Para 41)
Omission to return independent findings regard
to the willingness of the parties to compromise
the suit, and lawful nature of the agreement
makes the order perverse. Findings on the
identities of parties, identification of signatures
and the respective counsels, lack material
particulars and are vague. (Para 42 & 47)
Second Appeal allowed (E-5)
Cases relied upon: -

1.Mt. Asghari Begum Vs Fasihuddin AIR 1934
All. 989

2.Pradeep Kumar & anr. Vs Vishnu Kumar &
ors. 2018 All. C.J. 2560

3.Hamid Hussain Khan Vs Masood Hussain
Khan & ors. AIR (39) 1952 All. 279

4.Harmndeep Singh Vs Swaran Singh 2009
Law Suit (P&H) 640

(Delivered by Hon'ble Ajay Bhanot, J.)

1. This second appeal, arises out of
the
judgment
and
decree
dated
10.05.2005, rendered by the learned
Additional District Judge, Anupshahar,
District Bulandshahar in Civil Appeal no.
2 of 2004 (Jageshwar Dayal and others Vs
Rajjan Lal), which affirms the judgment
and decree dated 04.12.2003, entered by
the learned Civil Judge (Junior Division),
Bulandshahar, in Original Suit no. 231 of
2001, Jageshwar Dayal and others Vs
Rajjan Lal.

2. This second appeal is instituted by
the plaintiffs in the Original Suit no. 231
of 2001, Jageshwar Dayal and others Vs
Rajjan Lal.

3. The following genealogical table,
depicts the respective positions of parties,
to the litigation:
804 INDIAN LAW REPORTS ALLAHABAD SERIES

 Nannamal (deceased)

Shyo Prasad Gulab Dei Rajjanmal
Shanti Devi

(deceased) (deceased)
(defendant-respondent)

Suman Kumari Manorama Devi
Gayatri Jageshwar Dayal

(deceased)

4. The plaintiffs-appellants brought
civil
action,
against
the
defendantrespondent, by instituting a suit for
declaration and injunction. The suit was
registered as Original Suit No. 231 of
2001, Jageshwar Dayal and others Vs
Rajjan Lal before the learned Civil Judge
(Junior Division), Bulandshahar. The
plaintiffs-appellants in the suit claimed to
be true owners in possession of the
property
in
dispute
and
sought
a
declaration to that effect. It was further
prayed, that the defendant-respondent be
injuncted, from interfering with the
peaceful possession, of the plaintiffsappellants, over the property in dispute.
The third relief, sought by the plaintiffsappellants, was to restrain the defendantrespondent, from alienating the disputed
property in favour, of a third party.

5. Before the issues were framed, a
written compromise, purportedly executed
between the parties on 30.05.2001, was
filed in the learned trial court. The
defendant-respondent,
by
application
27Ga-2, denied the compromise.

6. The learned trial court vide order
dated 24.09.2002 rejected the application
27Ga-2 of the defendant-respondent. The
order dated 24.09.2002, found that the
compromise is only a document in the
record,
and
till
the
court
passes
appropriate orders, the compromise is
ineffective and cannot be acted upon.

7. The trial court framed the
following issues;

"(i) Whether the plaintiff is the owner
of the entire property in dispute?

(ii) Whether the plaint was under
valued and there was a deficiency in court
fee?

(iii) Whether disputed property is a
joint property of the parties in which all
parties are entitled to an equal share?

(iv) Whether the plaintiff is entitled
to any relief?

8. The issues were framed i.e. on
07.08.2003, and the issue no. 2 was
decided,
on
date.
By
order
dated
07.08.2003, the learned trial court, found
that the valuation of the property in
dispute was Rs. 10,000/-. The learned trial
court, by the said order, directed the
plaintiffs-appellants,
to
amend
the
valuation of the plaint and deposit the
deficient court fee, within a period of one
week. Additional time was granted by the
court, since the defects were not rectified
in time.

9. However, the plaintiffs-appellants
did
not
carry
out
the
necessary
amendment, nor did they deposit the
deficient court fee. On 28.10.2003, an
application registered as Paper No. 34A/1 was moved by the plaintiffsappellants, for enlargement of time to
cure the deficiencies.

10. The ordersheet of the learned trial
court goes silent thereafter, on whether the
amendment was carried out or not, and
whether
the
plaintiffs-appellants
had
deposited the deficient court fees.

11. The original records, of the
learned trial court, are before this Court.
2 All. Jageswar Dayal & Ors. Vs Rajjan Lal
805
Learned counsel for both the parties
perused the record. The learned counsels
for both the parties, confirm that the
plaintiffs-appellants did not carry out the
amendment in the plaint, and failed to
deposit the deficient court fees. No orders
were passed on application marked as
Paper No. 34A/1. These undisputed facts,
lie at the core of the controversy, in this
appeal.

12. An application, numbered as
Application no. 35-A/2 was filed, by the
defendant-respondent, before the learned
trial court on 04.12.2003, to decree the suit,
in light of the compromise agreement, dated
30.05.2001. The application, bears an
endorsement of the counsel of the plaintiffsappellants, seeking time to file an objection,
to the said application.

13. The learned trial court decided the
Application no. 35-A/2 and the suit on the
foot of the compromise dated 30.05.2001
and entered a judgment and decree on
04.12.2003.
The
judgement
dated
04.12.2003, passed by the learned trial
court, records that a compromise agreement,
was executed between the parties on
30.05.2001, and the same is in the record of
the court. The learned trial court, in the
judgement dated 04.12.2003, thereafter
finds that "by the compromise agreement
(Paper No. 22-A/1) the parties are ready to
compromise".
The
judgement
dated
04.12.2003, finally decreed the suit, in
terms of the compromise deed and the
compromise was made part of the decree.
The judgment of the learned trial court did
not consider the objection of the plaintiffappellant to the application no. 35A-2,
tendered by the defendant-respondent.

14. The plaintiffs-appellants carried
in appeal, the judgment and decree, of the
learned trial court dated 04.12.2003,
before the learned Additional District
Judge, Bulandshahar. The appeal was
registered, as Appeal No. 2 of 2004,
Jageshwar Dayal and others Vs Rajjan
Lal.
Various
grounds,
against
the
judgment and decree of the learned trial
court, were stated in the memo of appeal.
The grounds relevant at this stage,
specifically emphasized the objection
taken by the plaintiffs-appellants on
04.12.2003,
and
endorsed
on
the
application no. 35-A/2, submitted by the
defendant-respondent, to decree the suit in
terms of the compromise. The omission of
the trial court to consider the said
objection, was also a ground in the memo
of appeal.

15. The learned Appellate Court
framed one issue for determination,
"Whether the learned trial court while
entering its judgment and decree dated
04.12.2003, over looked the material in
the record, and misdirected itself in law,
by passing an arbitrary order?"

16. The learned appellate court in its
judgment dated 10.05.2005, found that the
compromise dated 30.05.2001, was filed
by both the parties in the court. The
judgment of the learned appellate court,
thereafter records, that no objection was
tendered by the plaintiffs-appellants, in
regard to the compromise. The only
objection to the compromise came from
the
defendant-respondent which
was
rejected by the learned trial court.

17. The learned appellate court thus
concurred with the learned trial court, that
no objection had been tendered by the
plaintiffs-appellants to the compromise.
In its narration of facts, though, the
appellate court noticed the objection made
806 INDIAN LAW REPORTS ALLAHABAD SERIES
by the plaintiffs-appellants before the trial
court seeking time to enter its opposition,
to the application No. 35-A submitted by
the defendant-respondent. However, no
finding in that regard was returned by the
learned appellate court. The appellate
court was in agreement, with the trial
court, to decree the suit on the foot of the
compromise.

18. The appellate court in its
judgment dated 10.05.2005, also dealt
with the issue, regarding deficiency in
payment of court fees, and failure of the
plaintiffs-appellants,
to
make
the
amendments to the plaint. The appellate
court judgment, held that in view of the
compromise between the parties, issue of
deficiency in court fee was irrelevant.

19. In this manner, the learned
appellate court, as well as the learned trial
court,
abstained
from
deciding
the
objection of plaintiffs-appellants to the
compromise. The learned courts also
opined that deficiency in court fees and
failure to amend the plaint on merits, had
lost relevance, in light of the compromise
between the parties.

20. In the wake of such findings, the
appeal filed by the plaintiffs-appellants,
came to be dismissed and the judgment &
decree of the learned trial court was
affirmed, by the learned appellate court,
in
its
judgment
and
decree
dated
10.05.2005.

21. Sri B. Dayal, learned counsel for
the appellants, submits that the judgments
and decrees of the learned trial court, as
well
as
learned
appellate
court,
respectively decreeing the suit in terms of
the compromise, was in the teeth of
Section 6(2) of the Court Fees Act, 1870.
The judgments of both the learned courts,
are in excess of jurisdiction. The courts
could not enter into the consideration of
the compromise, in the face of admitted
deficiency in the court fee.

22. Learned counsel for the
plaintiffs-appellants, further submits, that
the impugned judgements, completely
over
looked
the
objection
by
the
plaintiffs-appellants to the application,
filed by the defendant-respondent, to
decree
the
suit,
in
terms
of
the
compromise. The judgments & decrees
impugned are in violation of Order XXIII
Rule 3 CPC.

23. In opposition, Mrs. Rajni Ojha,
learned
counsel
for
the
defendantrespondent, submits that the appeal before
the learned appellate court, as well as the
instant
second
appeal,
are
not
maintainable in view of the bar in Section
96(3) CPC. Elaborating her submissions,
she contends, that findings of fact, had
been returned by the learned courts of
earlier instance, that the compromise was
duly arrived at, and hence the bar in
Section 96 (3) CPC read with Order
XXIII Rule 3 CPC, will apply in full force
to the facts of this case. Secondly, the
issue of court fees ceases to be relevant,
after the parties arrived at a compromise.

24. The parties agreed during the
arguments, that following substantial
questions of law arise for determination in
this second appeal.

(i) Whether the learned appellate
court and the learned trial court erred in
law by proceeding with the suit and
decreeing it in terms of the compromise,
even
in
the
admitted
presence
of
deficiency of court fees, and lack of
2 All. Jageswar Dayal & Ors. Vs Rajjan Lal
807
incorporation of amendment to the plaint
in regard to valuation of the suit?

(ii) Whether the judgment of the
learned trial court as well as learned
appellate court are rendered perverse and
illegal, on account of omission on the part
of the learned both courts, to return
independent findings on the objection
endorsed by the plaintiffs-appellants on
the application no. 35A filed by the
defendant-respondent?.

(iii) Whether the learned appellate
court erred in law by affirming the
judgment of the learned trial court,
without finding the compliance of Order
XXIII Rule 3 C.P.C.?
(iv) Whether the appeals before the
learned first appellate court as well as
this Court are maintainable?

25. The levy of court fee, is
governed and regulated by the Court Fees
Act, 1870 (hereinafter referred to as "Act
of 1870"). The Act of 1870 is a complete
code. The consequences of short payment
of court fee, and failure to rectify the
defect by making good the deficiency in
court fee, are provided in Section 6(2) of
Court Fees Act, 1870. The provision bears
relevance to the instant controversy, and it
would be apposite to extract the same
before proceeding further;

"6. Fees on documents filed, etc in
Mufassil Courts or in Public Offices-
(1)........

(2) Notwithstanding the provisions of
sub-section (1), a Court, may receive
plaint or memorandum of appeal in
respect of which an insufficient fee has
been paid, but no such plaint or
memorandum of appeal shall be acted
upon unless the plaintiff or the appellant,
as the case may be, makes good the
deficiency in court-fee within such time as
may from time to time be fixed by the
Court."

26. Answers to two of the
substantial questions of law, framed
herein above, will turn largely, on the
interpretation, of the above said provision.

27. A perusal of Section 6(2) of the
Act of 1870, discloses that even on
insufficient payment of fee, the court may
receive a plaint or a memorandum of
appeal. The second part of Section 6(2),
creates an embargo on further action, to
be taken on a plaint or memorandum of
appeal, which is deficient in court fee.
However the disability imposed is not
permanent, and shall stand removed, once
the plaintiff or the appellant, as the case
may, be makes good the deficiency in
court fee, within the time fixed by the
court. The defect is curable and can be
rectified by payment of court fee in full.

28. Section 6(2) of the Act of 1870
and in particular the phrase therein "shall
be acted upon" fell for consideration, on
more than one occasion, before this Court.

29. The consequences of the
deficiency in payment of court fee, on the
suit action, were determined by this Court
in Mt. Asghari Begum Vs Fasihuddin
reported at AIR 1934 Allahabad 989,
wherein it was ruled:

"There would be no proper suit
before the Court till the deficiency in
court-fee had been paid. The only order
that could be passed by the learned
Subordinate Judge was one rejecting the
plaint. No order permitting the plaintiff to
withdraw the suit and to bring a fresh suit
could have been made on the basis of an
insufficiently stamped plaint, which was
808 INDIAN LAW REPORTS ALLAHABAD SERIES
liable to be rejected. In this view of the
case, the plaintiff has paid what was due
by her, and she is not entitled to get back
the money. The application in revision is
accordingly dismissed with costs."

30. In Pradeep Kumar and
another Vs Vishnu Kumar and others,
reported at 2018 All. C.J. 2560, this
Court, interpreted the expression "no such
plaint or memorandum of appeal shall be
acted upon" as occurring in Section 6(2)
of the Court Fees Act, 1870. This Court in
Pradeep Kumar (supra) held:

"In so far as sub-section (3) of
section 6 is concerned, it restricts the
right of the court to proceed further with
the suit or appeal, if a question of
deficiency in court-fee in respect of any
plaint or memorandum of appeal has been
raised by an officer mentioned in Section
24-A. Proceeding further in a suit or an
appeal would mean proceeding further on
the claim made in the suit or in the appeal
or on the applications seeking interim
relief to serve that claim. It does not take
away the right of the plaintiff to abandon
any part of his claim. When a plaintiff
abandons part of his claim, he does not
proceed further with his claim made in
the suit. The process /act of abandonment
of a part of the claim made in a suit does
not amount to proceeding further in the
suit."

31. The consequences of deficiency
of court fees and the scope of expression
"proceeding with the suit" in Section 6(3)
of the Court Fees Act, 1870 were also
considered in Hamid Hussain Khan Vs
Masood Hussain Khan and others
reported at AIR (39) 1952 Allahabad
279. The determination of this Court of
the aforesaid legal question is as follows;

"29. Under Section 6(3) Court-fees
Act, as amended in U. P. when a question
of deficiency in court-fee is raised by the
Inspector of Stamps, the Court is directed,
before proceeding further with the suit or
appeal, to record a finding whether the
court fee paid is sufficient or not. If the
Court finds that the court-fee paid is
insufficient, it shall call upon the plaintiff
to make good the deficiency within such
time as it may fix and in case of default
shall reject the plaint; provided that the
Court may, for sufficient reasons to be
recorded proceed with the suit, if the
plaintiff gives security to the satisfaction
of the Court for payment of the deficiency
in court-fee within such further time as
the Court may allow.

30. As stated above, the Court does
not appear to have decided the question
of court-fee before proceeding with the
receivership application. The question is
whether proceeding with the receivership
application amounts to "proceeding with
the suit" I thick that it does. A application
for the appointment of a receiver is made
in the suit and is part of the proceedings
of the suit. It is true that it does not raise
a question upon the merits of the suit itself
but it is certainly an interim matter
connected with the suit. The words
'proceeding with the suit', as mentioned in
Section 6(a) must be read in the context of
Section 28 Court fees Act which provides
that no document shall be of any validity
unless and until it is properly stamped. If
the plaint is not properly stamped, the
Court ought not to take any action upon it
so as to give relief to the plaintiff by way
of an interim injunction or an order of
appointment of a receiver, or otherwise.

31. The fact that the defendant's
application in revision against the order
of the lower Court directing the hearing
of the receivership application before the
2 All. Jageswar Dayal & Ors. Vs Rajjan Lal
809
issue of court-fee was decided was
dismissed by this Court does not debar
this Court from considering in this appeal
the question whether in the circumstances
the Courts below bad jurisdiction to
proceed
with
the
hearing
of
the
receivership application. The reason is
that the revision was dismissed not on the
merits, but on a preliminary point that the
revision was not maintainable."

32. The preceding findings of facts,
the case law in point, and the bare words
of the statute, will enable us to distill the
import of Section 6(2) of the Act of 1870,
and its impact on this case.

33. The words "no plaint or
memorandum of appeal shall be acted
upon" essentially places a jurisdictional
fetter on the court. Jurisdiction, is the
authority conferred by law upon a court,
to try a lis. Before proceeding to try any
lis, or pronouncing any judgment on the
claim or part thereof, courts have to see
that all jurisdictional pre-requisites, are
satisfied.

34. A court can enter into the merits
of a controversy, and/or proceed with any
aspect of the claim, only after full court
fee as determined by the court, is paid.
The suit proceedings become dormant,
when deficiency in court fee is found. But
the jurisdiction of the court to process the
claim revives, once the deficiency is
removed. Failure to remove the deficiency
after opportunity, may entail dismissal of
the suit. In any case, the adjudication of
the claim or part thereof, which is subject
of the suit, cannot be proceeded with, in
the wake of deficient court fee.

35. The plaintiff had not amended
the plaint, and there was deficiency in
payment of court fee, despite orders of the
trial court.

36. In these facts, the learned trial
court as well as the learned appellate court,
did not have the jurisdiction, to enter into an
exercise under Order XXIII Rule 3 CPC,
return any findings in regard to the
compromise, and pass a judgment and
decree on the foot of such compromise. The
learned trial court as well as learned
appellate court, exceeded their jurisdiction,
and acted contrary to a statutory embargo
created by Section 6(2) of the Court Fee
Act, by acting upon the compromise dated
30.05.2001, and entering their respective
judgments and decrees, on the foot thereof,
in the face of admitted deficiency in
payment of court fee and failure of the
plaintiff-appellant to amend the plaint.

37. The first question of law is
accordingly answered as follows:

"The learned appellate court and the
learned trial court erred in law by
proceeding with the suit and decreeing it
in terms of the compromise, even in the
admitted presence of deficiency of court
fees, and lack of incorporation of
amendment to the plaint in regard to
valuation of the suit".

38. Compromise, between the
parties to a lis, is an act of litigative
repose, which terminates the litigation.
Compromise is an act of which parties to
a lis, to settle the dispute on acceptable
terms with mutual consent . Legislature
has accorded sanctity, to act of the parties
to settle their dispute, by compromise
agreements. The procedure for effecting a
valid compromise, provided in Order
XXIII Rule 3 CPC, is summary in detail
but substantive in content.
810 INDIAN LAW REPORTS ALLAHABAD SERIES

39. Order XXIII Rule 3 CPC. is
reproduced
here
under,
for
ready
reference:

3. Compromise of suit - Where it is
proved to the satisfaction of the Court
that a suit has been adjusted wholly or in
part
by
any
lawful
agreement
or
compromise [in writing and signed by the
parties] or where the defendant satisfied
the plaintiff in respect of the whole or any
part of the subject-matter of the suit, the
Court
shall
order
such
agreement,
compromise satisfaction to be recorded,
and shall pass a decree in accordance
therewith [so far as it relates to the
parties to the suit, whether or not the
subject-matter
of
the
agreement,
compromise or satisfaction in the same as
the subject-matter of the suit:]

[Provided that where it is alleged by
one party and denied by the other that an
adjustment or satisfaction has been
arrived at, the Court shall decide the
question; but not adjournment shall be
granted for the purpose of deciding the
question, unless the Court, for reasons to
be recorded, thinks fit to grant such
adjournment.]

[
Explanation-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;]

40. Compromise not only brings the
parties to a litigative terminus, but also
bars further litigation, by prohibiting any
appeal against a compromise decree. The
parties are barred from agitating the
matter any further, after the compromise
decree is passed. The parties cannot be
rushed into a compromise. The essence of
a
compromise,
is
in
a
voluntary
agreement, between the parties, to settle
the matter by mutual consent. The
procedure prescribed under Order XXIII
Rule 3 CPC, rules out all elements of
fraud, misrepresentation, coercion and
anything which makes a compromise non
voluntary.

41. Hence, there has to be strict
compliance of the procedure prescribed in
Order XXIII Rule 3 CPC. The provision
is mandatory, and has to be scrupulously
adhered to. The satisfaction of the Court,
should be duly recorded, in regard to the
willingness of the parties to compromise
the suit, and lawful nature of the
agreement. The identities of the parties,
either in person, or through their counsel
as well as their signatures should be fully
established before the court with full
material particulars. Satisfaction of these
conditions
precedent
to
a
valid
compromise should be reflected in clear
findings of the court.

42. In the instant case, the findings
of the trial court and the appellate court,
on the identities of parties, identification
of signatures and the respective counsels,
lack material particulars and are vague.

43. The learned trial court as well as
learned
appellate
court
under
the
judgments
dated
10.05.2005
and
04.12.2003
respectively,
have
not
recorded their satisfaction on the basis of
the material in the record, in regard to the
willingness
of
the
parties
to
the
compromise and the lawful nature of the
agreement.

44. The mandate of Order XXIII
Rule 3 CPC, as stated in the preceding
paragraphs, was not observed by the
learned trial court, as well as the first
appellate court. The compromise decree
2 All. Jageswar Dayal & Ors. Vs Rajjan Lal
811
was passed by the trial court in violation
of the provisions of Order XXIII Rule 3
CPC.

45. This requirement assumes
greater importance, in this case, in view
of some peculiar facts. The plaintiffsappellants had endorsed an objection to
the compromise on the application, filed
by
the
defendant-respondent,
dated
04.12.2003, registered as Paper No. 35A2. The learned trial court took no account
of the aforesaid objection. The learned
trial court did not return a finding on the
said objection made by the plaintiffappellant. This omission by the learned
trial court was a ground in the memo of
appeal before the first appellate court. The
learned appellate court, noticed the
objection of the plaintiffs-appellants, to
the compromise, but neglected to make a
finding on the same.

46. True it is, that the plaintiffsappellants
had
on
earlier
occasion,
affirmed the compromise, in response to
the application dated 04.07.2001 by the
defendant-respondent,
denying
the
compromise. On different occasions, both
parties had reversed their stands on the
compromise before the trial court. In such
situation, it was imperative to determine
the nature of the objection. The judgments
assailed in this second appeal have been
rendered in violation of Order XXIII Rule
3 CPC.

47. The findings of the learned trial
court, and the learned appellate court, that
the appellant did not object to the
compromise are perverse and contrary to
the record.

The second and third questions of
law are accordingly answered as follows;

(2)
The
judgment
of
learned
appellate court was rendered perverse and
illegal, by its agreement with the learned
trial court that the plaintiffs-appellants
had no objection to the compromise, since
it overlooked the admitted fact in the
record, that the plaintiffs-appellants had
endorsed an objection to the application
35-A, before the learned trial court and
duly reiterated the same in the memo of
appeal.

(3) The learned appellate court erred
in law, by affirming the judgment and
decree of the learned trial court, which
was passed in violation of Order XXIII
Rule 3 CPC.

48. The legislature has vested
sanctity in a mutual settlement by
according finality to a compromise
agreement. Of course the compromise has
to be entered into lawfully before a court
of law. The Courts acknowledge, the
quietus to the controversy, brought about
by such compromise. Appeals, against a
judgment and decree, passed on the foot
of a compromise are barred. Section 96(3)
of CPC prohibits any appeal, against a
decree passed on a compromise, between
the parties. The intent of the legislature is
not far to seek. Creating successive
avenues of appeal, against a judgment and
decree
passed
on
the
foot
of
a
compromise, would defeat the purpose of
settlement by compromise. Successive
avenues of appeal, would draw the
parties, into an endless orbit of litigation,
which
they
seek
to
end
by
the
compromise.

49. Considering the issue of
maintainability of an appeal and a second
appeal, arising out of a judgment and
decree passed on a compromise the
Hon'ble Punjab & Haryana High Court in
812 INDIAN LAW REPORTS ALLAHABAD SERIES
Harmndeep Singh Vs Swaran Singh
reported at 2009 Law Suit (P&H) 640,
answered the aforesaid question as under:

"24. The judgment and decree passed
by the learned lower appellate Court was
on the basis of compromise, which is
again not appealable. The prerequisite for
permitting the assignee to file an appeal
in this Court, the judgment/decree should
be appealable to the High Court. Once it
is proved, that the decree is not
appealable, the application or the appeal
filed by the applicant-appellant cannot be
entertained."

50. The argument of Smt. Rajini
Ojha, learned counsel for the respondent
regarding non maintainability of the
appeals, before the first appellate court as
well as this Court, seems attractive at first
sight, and settled both by statute and
authority. However, in light of the
established facts of this case and legal
narrative rendered in the earlier part of the
judgment, the arguments do not stand up
to judicial scrutiny.

51. Admittedly, there is a legislative
bar, against taking a judgment and decree,
passed on the foot of a compromise, in
appeal. Such bar is however, is premissed
on two facts. Firstly, the trial court, had
the jurisdiction to render the judgment
and decree on the foot of a compromise.
Secondly such judgment and decree had
been rendered in strict adherence to the
provisions of Order XXIII Rule 3 CPC. In
case, the trial court was not vested with
the jurisdiction, to enter a judgment on the
foot of a compromise, the bar of Section
96(3) CPC will not apply. There can be
no two ways about it. In the event, any
other
interpretation
is
adopted,
an
absurdity would be a sure consequence. In
that case, a judgment passed by a court,
without jurisdiction, would become final.
The aggrieved party, would not have any
legal recourse, even against a judgment,
which was beyond the jurisdiction of the
court. Consent of parties cannot confer
jurisdiction on courts.

52. It has already been found, in the
earlier part of the judgment, that the
learned trial court had exceeded its
jurisdiction and its judgment violated
Order XXIII Rule 3 C.P.C. The appeal
before the first appellate court, was
maintainable to determine among other
issues, the issue of excess of jurisdiction
and compliance of Order XXIII Rule 3
C.P.C. The instant second appeal is
maintainable on like grounds.

53. Smt. Rajini Ojha, learned
counsel for the respondents has relied
upon various judgments, relating to
estoppels created against the parties, on
account of compromise, and a consent
decree passed on the basis thereof.
However,
the
judgments
are
not
applicable, to the facts of the instant case,
in view of the findings the preceding part
of this judgement.

54. The second question of law is
answered as follows;

"The appeal before the first appellate
court as well as the second appeal before
this court are maintainable, since the trial
court acted in violation of Order XXIII
rule 3 CPC did not have the jurisdiction to
pass the judgment and decree assailed
before the first appellate court and this
Court."

55. The judgment and decree dated
04.12.2003, passed by the learned Civil Judge
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
813
(Junior Division), Bulandshahar, in Original
Suit no. 231 of 2001, Jageshwar Dayal and
others Vs Rajjan Lal, and the judgment and
decree
dated
10.05.2005,
passed
by
Additional
District
Judge,
Anupshahar,
District Bulandshahar in Civil Appeal no. 2 of
2004 (Jageshwar Dayal and others Vs Rajjan
Lal), are illegal and unsustainable.

56. The judgment and decree dated
04.12.2003, passed by the learned Civil
Judge (Junior Division), Bulandshahar, in
Original Suit no. 231 of 2001, Jageshwar
Dayal and others Vs Rajjan Lal, and the
judgment and decree dated 10.05.2005,
passed by Additional District Judge,
Anupshahar, District Bulandshahar in Civil
Appeal no. 2 of 2004 (Jageshwar Dayal and
others Vs Rajjan Lal), are set aside.

57. The matter is remitted to the
learned trial court.

58. The suit proceedings commence
forthwith before the learned trial court
upon receipt of a certified copy of this
order. The learned trial court shall grant
one month and no more time to the
plaintiffs-appellants to amend the plaint
and make good the deficiency in the court
fee. The learned trial court shall decide
the suit within a period of six months
thereafter. The learned trial court shall
proceed on day to day basis, if necessary
to adhere to the stipulated time line. The
learned trial court shall not grant any
adjournment to the parties. The learned
trial court shall finally decide the suit, in
accordance with law and consistent with
the observations made in this judgment.

59. In case an appeal is filed against
the judgment & decree of the trial court,
the appellate court shall decide the appeal
within two months.

60. Second appeal is allowed to the
extent indicated above.
----------

(2019)10ILR A 813

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 264 of 2012
connected with
First Appeal No. 3 of 2016

Bulandshahr Khurja Development
Authority, Bulandshahr ...Appellant
Versus
Smt. Amir Kuwar & Ors. ...Respondents

Counsel for the Appellant:
Sri B. Dayal

Counsel for the Respondents:
Sri D.K. Mishra, Sri B.B. Paul, Sri B.K.
Solanki

A. Land Acquisition Act, 1894 - Market
Value - Determination of market value
has to be made as per market rate,
prevailing on the date of publication of
notification under section 4 (1) of Act,
1894. (Para 33)
B. Land Acquisition Act, 1894 - Market
Value vis-à-visCircle rates - For the
purposes of determining market value,
under Section 23 of Act, 1894 - circle
rate fixed by Collector for the purposes
of stamp duty, under Stamp Act, 1899 -
would not be a relevant material unless
such determination is under a statutory
obligation
and
after
following
the
prescribed procedure. (Para 36 & 38)
C. Land Acquisition Act, 1894 - Market
Value - 'comparable sales method of