# Om Prakash Rai & Ors v. Board of Revenue, Allahabad & Ors

- **Citation:** (2020) 11 ILRA 165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-10
- **Case number:** Writ-B No. 853 of 2020
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-rai-ors-v-board-of-revenue-allahabad-ors-45379
- **Pages:** 5

## Headnote

A. Civil Law - Code of Civil Procedure:
Order XXIII, Rule 3, 3-A - Practice &
Procedure - The Court relied upon the
decision of the Supreme Court wherein it
was held in case on the basis of
compromise any order was passed, the
same could only be examined by the same
court and not by the other court under the
provisions to Rule 3 and 3-A of Order
XXIII of the CPC. The Court should never be
a party to imposition of a compromise upon an
unwilling party. It is always open for an
unwilling party to question on the same by
moving an appropriate application under proviso
of Rule 3 of Order XXIII before the same court.
(Para 11) (E-10)

List of Cases cited:-

## Text

11 All. Om Prakash Rai & Ors. Vs. Board of Revenue, Allahabad & Ors.
165
the record that taking into consideration the
provisions of the Act, 1982, Government
Order dated 25th August, 2015 has already
been issued by the Director of Education
(Secondary), U.P., Lucknow to all the
District Inspector of Schools of the State
directing them to appoint the senior-most
Assistant Teacher/ Lecturer as officiating
Principal of the institutions, where the
office of the Principal is vacant, and to
grant them the salary of the Principal.

19. It is unfortunate that in spite of the fact
that clear provisions which are contained in the
Act and Government Order in this regard has
already been issued by the Director of
Education (Secondary), U.P., Lucknow on 25th
August, 2015, the stand taken by the respondent
No.3 in the present case refusing payment of
salary to the petitioner on the same ground
which were earlier dealt with by different
Division Benches as well as Full Bench of this
Court could not be justified.

20. After careful consideration of the
matter, I am of the view that the ends of justice
would be subserved by setting aside impugned
order 01.08.2015 passed by District Inspector of
Schools, Azamgarh/respondent No.3 and by
issuing a direction upon the Regional Joint
Director of Education, Azamgarh/respondent
No.2 to consider the grievance of the petitioner
about her salary of the officiating Principal in
the principal's grade. The petitioner is at liberty
to file a fresh representation before the Joint
Director of Education, Azamgarh Region,
Azamgarh who shall pass the order in the light
of the observations made herein-above within
two months from the date of communication of
this order.

21. With the aforesaid observations,
the writ petition is allowed. No order as to
costs.
----------
(2020)11ILR A165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2020

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-B No. 853 of 2020

Om Prakash Rai & Ors. ...Petitioners
Versus
Board of Revenue, Allahabad & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Virendra Singh, Sri Shyam Singh

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Tripathi, Sri
Bhupendra Kumar Tripathi, Sri Himansu
Pandey, Sri Pradeep Kumar Dwivedi, Sri
K.K. Pandey

A. Civil Law - Code of Civil Procedure:
Order XXIII, Rule 3, 3-A - Practice &
Procedure - The Court relied upon the
decision of the Supreme Court wherein it
was held in case on the basis of
compromise any order was passed, the
same could only be examined by the same
court and not by the other court under the
provisions to Rule 3 and 3-A of Order
XXIII of the CPC. The Court should never be
a party to imposition of a compromise upon an
unwilling party. It is always open for an
unwilling party to question on the same by
moving an appropriate application under proviso
of Rule 3 of Order XXIII before the same court.
(Para 11) (E-10)

List of Cases cited:-

1. Banwari Lal Vs Chando Devi (1993) 1 SCC
581

2. Pushpa Devi Bhagat (Dead) through LR
Sadhna Rai (Smt) Vs Rajinder Singh & ors.
(2005) 5 SCC 566
166 INDIAN LAW REPORTS ALLAHABAD SERIES
3. R. Rahanna Vs S.R. Venkataswamy & ors.
(2014) 15 SCC 471

4. Triloki Nath Singh Vs Anirudh Singh (D) thr.
LRS & ors. (2020) Law Suit (SC) 391 (followed)

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard learned counsel for the
petitioners, learned Standing Counsel for
the respondent nos.1 to 3, Sri K. K. Pandey,
Advocate, holding brief of Sri Himanshu
Pandey, learned counsel for the respondent
no.4, Sri P. K. Dwivedi, learned counsel for
the respondent no.7 and Sri Bhupendra
Kumar Tripathi, learned counsel for the
respondent no.9.

2. The petitioners have preferred the
present writ petition inter-alia with the
prayer to quash the order dated 18.2.2020
passed by the Board of Revenue, U.P. at
Allahabad/respondent
no.1
in
Second
Appeal No.25 of 1995-96 (Gaurishankar
Vs. Manna Devi) as well as compromise
dated 28.8.2019.

3. The facts in brief as contained in
the writ petition are that a revision was
preferred by one Gaurishankar against
Manna
Devi
before
the
Board
of
Revenue/respondent
no.1.
During
the
pendency of the aforesaid revision a
compromise was taken place between Smt.
Amla Devi/respondent no.4 and Pradeep
Kumary Pandey, Ajeet Kumar Pandey and
Avinash Kumar Pandey and Smt. Parwati
Devi, respondents no.5 to 8 on 15.7.2019.
The same compromise was duly verified by
the competent court and thereafter the same
was forwarded before the respondent no.1.
Taking into consideration the aforesaid
compromise application, the second Appeal
in question was decided by the respondent
no.1 on 18.2.2020. Aggrieved against the
aforesaid decision, the petitioners have
preferred the present writ petition.

4. It is argued by learned counsel for
the
petitioners
that
the
compromise
application was submitted by the parties by
way of collusion. It is further argued that
on account of decision taken by the
respondent no.1, the plot of the petitioners
were altered and the order impugned has
been
passed
without
providing
any
opportunity of hearing to the petitioners.

5. On the other hand it is argued by
learned counsel for the private respondents
that in case any compromise was taken
place and on the basis of the same an order
has been passed by the court of law, then
only remedy lies with the petitioners to
move an appropriate application before the
court who recorded the compromise. The
question whether the compromise was valid
or not could not be looked by the higher
courts. It is argued that the remedy is
provided to the petitioners to file the
appropriate application. Learned counsel
for
the
respondents
also
relied
the
provisions contained in Order XXIII, Rule
3 and 3-A of the Code of Civil Procedure.

6. It is true that a compromise
forming the basis of the decree can only be
questioned before the same court that
recorded the compromise and a fresh suit
for setting aside a compromise decree is
expressly barred under Order 23 Rule 3-A.
It is equally true that the expression "not
lawful" used in Order 23 Rule 3-A also
covers a decree based on a fraudulent
compromise hence, a challenge to a
compromise decree on the ground that it
was obtained by fraudulent means would
also fall under the provisions of Order 23
Rule 3-A.
11 All. Om Prakash Rai & Ors. Vs. Board of Revenue, Allahabad & Ors.
167

7. In case of Banwari lal v. Chando
Devi reported in (1993) 1 SCC 581 the
Supreme Court examined the provisions of
Order 23 Rule 3-A in some detail and in the
light of the amendments introduced in the
Code and in para 7 of the judgment came to
hold as follows:

"7. By adding the proviso along
with an Explanation the purpose and the
object of the amending Act appears to be to
compel
the
party
challenging
the
compromise to question the same before the
court which had recorded the compromise
in question. That court was enjoined to
decide the controversy whether the parties
have arrived at an adjustment in a lawful
manner. The Explanation made it clear that
an agreement or a compromise which is
void or voidable under the Contract Act
shall not be deemed to be lawful within the
meaning
of
the
said
rule.
Having
introduced the proviso along with the
Explanation in Rule 3 in order to avoid
multiplicity of suit and prolonged litigation,
a specific bar was prescribed by Rule 3-A
in respect of institution of a separate suit
for setting aside a decree on the basis of a
compromise.

8. The question that falls for
determination is as to whether the writ
petition filed by the petitioners seeking a
writ in the nature of certiorari against the
order of of compromise dated 18.02.2020
passed by the respondent no. 1, Board of
Revenue is maintainable, in view of the
proviso of order 23 Rule 3 and 3-A of the
Code of Civil Procedure or not. The
provisions of Rule 3 and 3-A of order
XXIII of the Code of Civil Procedure is
extracted herein-below:-

"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 satisfies the
plaintiff in respect of the whole or any part
of the subject-matter of the suit, the Court
shall order such agreement, compromise or
satisfaction to be recorded, and shall pass a
decree in accordance therewith so far it
relates to the parties to the suit, whether or
not the subject-matter of the agreement,
compromise, or satisfaction is 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 no
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.

3A. Bar to suit - No suit shall lie to
set aside a decree on the ground that the
compromise on which the decree is based
was not lawful."

9. Legislative intent has been
considered in extenso by the Supreme
Court in the case of Pushpa Devi
Bhagat(Dead)
Through
LR
Sadhna
Rai(Smt) Vs. Rajinder Singh and Others,
reported in (2005) 5 SCC 566, after taking
note of the scheme of Order XXIII Rule 3
and Rule 3A added with effect from 1st
February, 1977. The relevant paragraphs
are as under:-

"17. The position that emerges
from the amended provisions of Order 23
can be summed up thus:
168 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) No appeal is maintainable
against a consent decree having regard to
the specific bar contained in Section 96(3)
CPC.

(ii) No appeal is maintainable
against the order of the court recording the
compromise (or refusing to record a
compromise) in view of the deletion of
clause (m) of Rule 1 Order 43.

(iii) No independent suit can be
filed for setting aside a compromise decree
on the ground that the compromise was not
lawful in view of the bar contained in Rule
3-A.

(iv) A consent decree operates as
an estoppel and is valid and binding unless
it is set aside by the court which passed the
consent decree, by an order on an
application under the proviso to Rule 3
Order 23.

Therefore,
the
only
remedy
available to a party to a consent decree to
avoid such consent decree, is to approach
the court which recorded the compromise
and made a decree in terms of it, and
establish that there was no compromise. In
that event, the court which recorded the
compromise will itself consider and decide
the question as to whether there was a valid
compromise or not. This is so because a
consent decree is nothing but contract
between parties superimposed with the seal
of approval of the court. The validity of a
consent decree depends wholly on the
validity of the agreement or compromise on
which it is made. The second defendant,
who challenged the consent compromise
decree was fully aware of this position as
she filed an application for setting aside the
consent decree on 21-8-2001 by alleging
that there was no valid compromise in
accordance with law. Significantly, none of
the other defendants challenged the consent
decree. For reasons best known to herself,
the second defendant within a few days
thereafter (that is on 27-8-2001) filed an
appeal and chose not to pursue the
application filed before the court which
passed the consent decree. Such an appeal
by
the
second
defendant
was
not
maintainable, having regard to the express
bar contained in Section 96(3) of the
Code."

10. Further in the case of R. Rajanna
Vs. S.R. Venkataswamy and Others
reported in (2014) 15 SCC 471 it was held
that :-

"11. It is manifest from a plain
reading of the above that in terms of the
proviso to Order 23 Rule 3 where one party
alleges and the other denies adjustment or
satisfaction of any suit by a lawful
agreement or compromise in writing and
signed by the parties, the Court before
whom such question is raised, shall decide
the same. What is important is that in terms
of Explanation to Order 23 Rule 3, the
agreement or compromise shall not be
deemed to be lawful within the meaning of
the said Rule if the same is void or voidable
under the Contract Act 1872. It follows that
in every case where the question arises
whether or not there has been a lawful
agreement or compromise in writing and
signed by the parties, the question whether
the agreement or compromise is lawful has
to be determined by the court concerned.
What is lawful will in turn depend upon
whether
the
allegations
suggest
any
infirmity in the compromise and the decree
that would make the same void or voidable
under the Contract Act. More importantly,
Order 23 Rule 3-A clearly bars a suit to set
aside a decree on the ground that the
compromise on 2 2014(15) SCC 471 which
the decree is based was not lawful. This
implies that no sooner a question relating
to
lawfulness
of
the
agreement
or
11 All. Shashi Prabha Vs. The Deputy Director of Consolidation, District Budaun & Ors.
169
compromise is raised before the court that
passed the decree on the basis of any such
agreement or compromise, it is that court
and that court alone who can examine and
determine that question. The court cannot
direct the parties to file a separate suit on
the subject for no such suit will lie in view
of the provisions of Order 23 Rule 3-A
CPC. That is precisely what has happened
in the case at hand. When the appellant
filed OS No. 5326 of 2005 to challenge the
validity of the compromise decree, the court
before whom the suit came up rejected the
plaint under Order 7 Rule 11 CPC on the
application made by the respondents
holding that such a suit was barred by the
provisions of Order 23 Rule 3-A CPC.
Having thus got the plaint rejected, the
defendants (respondents herein) could
hardly be heard to argue that the plaintiff
(appellant herein) ought to pursue his
remedy against the compromise decree in
pursuance of OS No. 5326 of 2005 and if
the plaint in the suit has been rejected to
pursue his remedy against such rejection
before a higher court."

11. Counsel for the respondents relied
upon a very recent decision given by the
Supreme Court on May 6, 2020 in Civil
Appeal No.3961 of 2010 (Triloki Nath Singh
Vs. Anirudh Singh (D) thr. LRS & Ors
(2020) Law Suit (SC) 391. It was held in the
aforesaid case that in case on the basis of
compromise any order was passed, the same
could only be examined by the same court
and not by the other court under the
provisions to Rule 3 and 3-A of Order XXIII
of the Code of Civil Procedure. The Court
should never be a party to imposition of a
compromise upon an unwilling party. It is
always open for an unwilling party to
question on the same by moving an
appropriate application under the proviso of
Rule 3 of order XXIII before the same Court.

12. Heard learned counsel for the
parties and perused the record.

13. From perusal of the record, the
Court is of the opinion that in view of the
provisions contained in Rule 3 of Order
XXIII of the Code of Civil Procedure as well
as in view of the law laid down by the
Supreme Court as narrated above, the present
writ petition filed by the petitioners is not at
all maintainable. The only remedy lies with
the petitioners to file the appropriate
application, if so advised, before the
respondent no.1.

14. Accordingly, present writ petition is
dismissed.
----------
(2020)11ILR A169
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2020

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-B No. 42060 of 2015

Shashi Prabha ...Petitioner
Versus
The Deputy Director of Consolidation,
District Badaun & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rama Shankar Mishra

Counsel for the Respondents:
C.S.C., Sri K.K. Chaurasia, Sri S.M. Pandey,
Sri Yogesh Kumar

A.
Civil
Law
-U.P.
Consolidation
of
Holdings Act, 1953 - Section 12, 48, 52 -
Indian Limitation Act, 1963- Section 5 -
Consolidation Proceedings - Fraud - Fraud
vitiates every solemn proceedings and no
right can be claimed by a fraudster on the
ground of technicalities. (Para 15)