# Plaintiff v. Om Prakash and another

- **Citation:** (2007) 1 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-20
- **Case number:** First Appeal From Order No.956 of 2005
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-v-om-prakash-and-another-40824
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order 23 rule 3
readwith Indian Contract Act, Section 23
with Transfer of Property Act-Section54-Transfer of immovable property-by
means
of
compromise
terms
of
compromise being unlawful u/s 23 of
Contract Act-sale transaction being his
198 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
by the provisions of 54 of T.P. Act-heldcompromise rightly refused.

Held: Para 8 & 9

In other words, the title to the disputed
house is being sought to transfer from
the defendant to the plaintiff. Such an
agreement is obviously hit by Section 23
of the Contract Act. The purpose and
object of the said compromise is to
transfer the disputed house through the
agency of the Court in absence of a
registered instrument. Such thing is not
permissible in law being against Section
54 of the Transfer of Property Act, which
defines sale and provides that in case of
tangible immovable property of value of
Rs.100/- and upwards can be made only
by a registered instrument.

In this view of the matter the finding
recorded
by
the
Court
below
that
compromise was not lawful agreement
or compromise, is correct and the trial
court committed illegality in deciding the
suit in terms of compromise.
Case law discussed:
AIR 1993 SC-1139
2000 (4) AWC-2848

## Text

1 All] Mahendra Yadav V. Om Prakash and another
197
The accused cannot be convicted on
the basis of the presumption that the death
was caused by poisoning. It requires a
positive evidence to reach a conclusion
that the death was caused by poisoning.
The viscera was sent to chemical
examiner, who reported vide his report
Ex. Ka 18 that no poison was found in
any component of viscera. Learned
A.G.A. contended that the viscera report
Ext. Ka-18 was not proved. Section 293
Cr.P.C.
permits
that
any
document
purported to be a report under the hand of
the Government Scientific Expert upon
any matter or thing du1y submitted to him
for chemical examination or analysis may
be used in any enquiry. Ext. Ka 18 is a
report of the chemical examiner and it
may be used under Section 293 Cr.P.C.
We, therefore, reject the arguments of the
learned A.G.A. that the viscera report Ext.
Ka 18 cannot be read or used.

The opinion of Dr. D.D. Tripathi that
Smt. Gyani Devi died as a result of
poisoning is based on presumption and
surmises. Therefore, his opinion is not
acceptable. Besides it, his opinion that the
deceased died due to poisoning is contrary
to the opinion of chemical examiner,
therefore, it deserves to be rejected.

Thus in the nut-shell we have
nothing before us which may lead us to a
positive conclusion that Smt. Gyani Devi
died due to poisoning.

The investigation into the case does
not appear to have been fairly and
properly made by the police officers.
Nagendra Singh (P.W. 7), Bal Govind
Tiwari (P.W.9) who appear to have very
formally
submitted
the
charge-sheet
against the appellant-accused.

Having
visualized,
envisioned,
paused, pondered, carefully considered
and
scrutinized
all
the
facts
and
circumstances of the case, we arrive at the
conclusion that the present is a peculiar
case without evidence and evidence
without. Therefore, the appeal deserves to
be allowed and it is accordingly allowed.

The judgment and order dated
30.8.1980 passed by the trial court
referred-to-above
are
set-aside.
The
appellant-accused Hira Lal is acquitted of
the offence under Section 302 IPC for
which he was convicted and sentenced.
His personal and surety bonds are
discharged. He is on bail. He need not to
surrender.

Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal From Order No.956 of 2005

Mahendra Yadav

...Plaintiff
Versus
Om Prakash and another
...Defendant

Counsel for the Appellant:
Sri K.K. Mani

Counsel for the Respondents:
Sri J.P. Gupta
Sri Janardan Yadav
Sri Manish Kumar Nigam

Code of Civil Procedure-Order 23 rule 3
readwith Indian Contract Act, Section 23
with Transfer of Property Act-Section54-Transfer of immovable property-by
means
of
compromise
terms
of
compromise being unlawful u/s 23 of
Contract Act-sale transaction being his
198 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
by the provisions of 54 of T.P. Act-heldcompromise rightly refused.

Held: Para 8 & 9

In other words, the title to the disputed
house is being sought to transfer from
the defendant to the plaintiff. Such an
agreement is obviously hit by Section 23
of the Contract Act. The purpose and
object of the said compromise is to
transfer the disputed house through the
agency of the Court in absence of a
registered instrument. Such thing is not
permissible in law being against Section
54 of the Transfer of Property Act, which
defines sale and provides that in case of
tangible immovable property of value of
Rs.100/- and upwards can be made only
by a registered instrument.

In this view of the matter the finding
recorded
by
the
Court
below
that
compromise was not lawful agreement
or compromise, is correct and the trial
court committed illegality in deciding the
suit in terms of compromise.
Case law discussed:
AIR 1993 SC-1139
2000 (4) AWC-2848

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

1. This is plaintiff's appeal under
Order 43 Rule 1 (u) C.P.C. against the
order dated 2nd of February, 2005 passed
by the Additional District Judge, Court
No.16, Deoria in civil appeal No.14 of
1998 whereby it allowed the appeal and
set aside the judgment and decree dated
27.11.1997 passed by the Court below
and remanded the matter for decision of
the
suit
on
merits
after
giving
opportunities to the parties to file
evidence.

2. The plaintiff, Mahendra Yadav,
instituted suit No.306 of 1997 against Om
Prakash on the allegations that the
defendant is living all alone and has been
looked after by the plaintiff. He was in
need of Rs.1 Lakh in the month of June,
1988, which was advanced by the plaintiff
on the understanding that in lieu of money
the house of the defendant stood sold. It
was also understood that if the aforesaid
sum of Rs.1 Lakh is not returned within a
period of five years, there would be a sale
deed in pursuance of the understanding
arrived at between the parties in the
month of June, 1988. The defendant has
failed to return the money within the
aforesaid period and has executed a
registered Will deed dated 25.1.1995 in
his favour on the assurance that there
would be no further demand for refund of
money from the plaintiff. In this regard on
5th of April, 1996 a Yaddast was also
written by the defendant. The plaintiff is
in possession of the house, which belongs
to the defendant and filed the suit for
injunction that the defendant be restrained
permanently from transferring, alienating
or interfering in the possession of the
plaintiff over the disputed house. A relief
for declaration was also sought for that in
view of the Yaddast dated 5.4.1996
executed by the defendant, the defendant
ceased to have any right, title or interest
in the said house.

3. A supporting written statement
reiterating the plaint allegation was filed
by the defendant on 21st of November
1999 and the evidence of the plaintiff was
recorded on 26th of November, 1997. On
that day a compromise petition was filed
before the trial court on the allegation that
the
parties
have
entered
into
a
compromise and the suit be decided in
terms thereof. The trial court on 27th of
November, 1997 in the presence of the
parties decided the suit in terms of
1 All] Mahendra Yadav V. Om Prakash and another
199
compromise and the compromise was
made part of the decree.

4. Feeling aggrieved against the
judgment and decree, civil appeal No.14
of 1998 was filed by the defendant Om
Prakash and one Smt. Vandana Devi wife
of Pawan Kumar Sharma @ Pappu
Sharma before the Court Below on the
ground that the aforesaid compromise
being unlawful, the suit could not have
been decided by the trial court in
pursuance thereof. It was further stated
that the said compromise decree was
obtained
by
impersonation
and
the
defendant namely Om Prakash did not
sign the said compromise nor ever agreed
to it. The appellant no.2 namely Smt.
Vandana Devi Sharma claimed the
property in question on the basis of earlier
sale deeds executed on 15.9.1995 and
29.10.1992 by the defendant Om Prakash.
Smt. Vandana Devi Sharma also claimed
that she is in possession of the house in
question in pursuance of the aforesaid sale
deeds and submitted that the compromise
decree dated 27th of November, 1997 is
liable to be set aside as the vendor namely
defendant had already sold the disputed
property to her through the aforesaid two
sale deeds.

5. The Court below by the order
under appeal has allowed the appeal and
remanded the matter to the trial court for
fresh consideration in the light of the
observations made in the judgment.

6. Heard the learned counsel for the
parties and perused the record. The
learned
counsel
for
the
appellant
strenuously submitted that no appeal lies
under section 96 C.P.C. in view of the
Sub Section (3) thereof. It was submitted
that a regular appeal was filed before the
Court below and as such the appeal was
not maintainable. On merits, he submitted
that the parties having been entered into
the compromise before the trial court and
in the absence of any finding of
impersonation by the Court below, the
Court below committed illegality in
allowing the appeal. The learned counsel
for the respondents supported the order
under appeal and submitted that the
compromise in question, on the face of it,
being unlawful is void under Section 23
of the Contract Act. Elaborating the
argument it was submitted that title to an
immovable property can be passed only
through a registered document such as
sale deed, gift deed or exchange.

7. The Order 23 of C.P.C. deals with
the subject "withdrawal and adjustment of
suits." Rule 3 deals with compromise of
suit. It provides that where it is proved to
the satisfaction of the court that a suit has
been adjusted wholly or in part by lawful
agreement in writing signed by the
parties, the court shall order the such
agreement, compromise or satisfaction to
be recorded and shall pass a decree in
accordance therewith. The orders ''lawful
agreement' or ''compromise' in Rule 3 had
given rise to a conflict in the matter of
interpretation. One view was that the
agreements which are void under Section
19 A of the Contract Act are not
excluded. This was the view of the
Allahabad, Calcutta, Madras and Kerala
High Courts. A contrary view was taken
by Bombay and Nagpur High Courts. To
set it at rest, the said controversy, an
explanation has been added to the Rule to
clarify
the
position.
The
said
"explanation" reads as follows:-

"An agreement or compromise which
is void or voidable under the Indian
200 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Contract Act, 1972 (Act No.9 of 1972),
shall not be deemed to be lawful within
the meaning of this Rule."

8. From the averments made in the
plaint, it is clear beyond doubt that the
plaintiff is not owner of the house in
question. He, rather has admitted the
ownership and title of the defendant in
respect to the house in question. The
learned counsel for the plaintiff appellant
could not dispute the proposition that title
to an immovable property can be
transferred
only
by
a
registered
instrument namely sale deed, gift deed,
exchange, surrender deed etc. A copy of
the
compromise
petition
has
been
annexed along with the affidavit. By
means of the said compromise, an attempt
has been made to make the plaintiff
owner of the disputed house by divesting
it from the defendant who is owner
thereof. In other words, the title to the
disputed house is being sought to transfer
from the defendant to the plaintiff. Such
an agreement is obviously hit by Section
23 of the Contract Act. The purpose and
object of the said compromise is to
transfer the disputed house through the
agency of the Court in absence of a
registered instrument. Such thing is not
permissible in law being against Section
54 of the Transfer of Property Act, which
defines sale and provides that in case of
tangible immovable property of value of
Rs.100/- and upwards can be made only
by a registered instrument.

9. In this view of the matter the
finding recorded by the Court below that
compromise was not lawful agreement or
compromise, is correct and the trial court
committed illegality in deciding the suit in
terms of compromise.

10. As regards the maintainability of
appeal is concerned, the issue is no longer
res integra and has been set at rest by
Apex Court in Banwari Lal Vs. Smt.
Chando Devi A.I.R. 1993 S.C. 1139. It
has been held that where a challenge to
the compromise petition is made, an
application can be filed under Proviso to
Order 23 Rule 3 of C.P.C. or an appeal
under Section 96 (1) C.P.C. The relevant
paragraph is reproduced below:-

13.
"When
the
amending
Act
introduced a proviso along with an
explanation to Rule 3 of O. 23 saying that
where it is alleged by one party and
denied by other that an adjustment or
satisfaction has been arrived at, "the
Court shall decide the question", the
Court
before
which
a
petition
of
compromise is filed and which has
recorded such compromise, has to decide
the question whether an adjustment or
satisfaction had been arrived at on basis
of any lawful agreement. To make the
enquiry in respect of validity of the
agreement or the compromise more
comprehensive, the explanation to the
proviso says that an agreement or
compromise "which is void or voidable
under the Indian Contract Act ......" shall
not be deemed to be lawful within the
meaning of the said Rule. In view of the
proviso read with the explanation, a
Court which had entertained the petition
of compromise has to examine whether
the compromise was void or voidable
under the Indian Contract Act. Even R.
1(m) of O. 43 has been deleted under
which an appeal was maintainable
against an order recording a compromise.
As
such
a
party
challenging
a
compromise can file a petition under
proviso to R. 3 of O. 23, or an appeal
under S. 96(1) of the Code, in which he
1 All] Deepak V. State of U.P. and another
201
can now question the validity of the
compromise in view of R. I A of O. 43 of
the Code."

11. The aforesaid judgment has been
followed by Learned Single Judge in
Durga
Prasad
Tandon
Vs.
Gaur
Brahmin Sabha 2000 (4) AWC 2848.

The submission of the learned
counsel for the appellant that instead of
filing a miscellaneous appeal, a regular
appeal under Section 96 C.P.C. was filed
and
therefore
the
same
was
not
maintainable needs to be noted. However,
he could not dispute that even if a
miscellaneous appeal would lie before the
Court below and there will not be change
of forum of the appellate court may be a
regular appeal or a miscellaneous appeal.
Assuming for a moment that the said
argument of the appellant has some force
it will not make any difference as it has
been firmly established that mere mention
of a wrong Section will not make any
difference if the court had the jurisdiction
to entertain and decide the appeal.

In view of the above discussion I
find no merit in the appeal. The appeal is
dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2006

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Revision No. 3996 of 2004

Deepak

...Revisionist
Versus
State of U. P. and another

...Opposite parties

Counsel for the Revisionist:
Sri T.K. Srivastava

Counsel for the Opposite Parties:
Sri Mahipal Singh
A.G.A.

Code of Criminal Procedure-Section 311Application
for
re-examination
of
witness-after one year-it is for the court
to ensure justice-ends of justice is higher
than end of law-held-it is for Trail Court
to
apply
its
independent
mind
in
evaluating the value of evidence.

Held: Para 5

I
am
not in agreement with this
contention of the learned counsel for the
petitioner. The ends of justice are higher
than the mere ends of law, and it is for
the Courts to ensure that justice is not
made hostage to the money or muscle
power of accused persons who after
committing crimes are determined to
sabotage their trials and to prevent them
from reaching their culmination. The
time factor in moving the application for
re-examination of the witnesses who
had become hostile is also not allimportant, as it may have taken time for
the witnesses to regain confidence and
to overcome their fear of the accused for
deposing about the true version in Court.

(Delivered by Hon'ble Amar Saran, J.)

1. This criminal revision has been
filed for challenging the order dated
2.9.2004
passed
by
the
Additional
Sessions
Judge,
FTC
No.2,
Bijnor
allowing the application moved by the
complainant-opposite party No. 2 under
Section 311 Cr.P.C. seeking to reexamine Rakesh Kumar and Virendra
Singh in S.T. No. 220 of 2002 (State Vs.
Deepak and others), under Sections
302/324 IPC, police station Haldaur,
district Bijnor.