# Rajeev Gupta v. Swatantrata Sangram Senani Ashrit Sangathan Pilibhit & Ors

- **Citation:** (2024) 4 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-21
- **Case number:** Matters Under Article 227 No. 3022 of 2024
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-gupta-v-swatantrata-sangram-senani-ashrit-sangathan-pilibhit-ors-51777
- **Pages:** 10

## Headnote

(A) Civil Law - Rejection of Plaint - Code of
Civil Procedure, 1908 - Order VII Rule 11 -
rejection of a plaint if it does not disclose a
cause of action or is barred by law, Order 23
Rule 3A - Bar to suit to set aside a
compromise decree , Specific Relief Act,
1963 - Section 38, Section 41(j) - Perpetual
injunctions and when they can be granted -
Compromise decree - Cause of action -
Locus standi - Supervisory jurisdiction -
Only the plaint averments can be seen at the
time of considering an application under
Order VII Rule 11 C.P.C. (Para -13)

(B) Civil Law - Code of Civil Procedure, 1908
- Order VII Rule 11 - plaint can be rejected
under Order VII Rule 11(d) of C.P.C. if the
statements in the plaint itself reveal that the
suit is barred by law or does not disclose a
cause of action - Court must limit itself to
the statements in the plaint without
considering
any
external
evidence
or
written statements. (Para 10, 11, 13, 16)

(C) Civil Law - Code of Civil Procedure,
1908 - Order 23 Rule 3A - Compromise
decree under Order 23 Rule 3A cannot be
4 All. Rajeev Gupta Vs. Swatantrata Sangram Senani Ashrit Sangathan Pilibhit & Ors.
115
challenged by a person who was not a
party to the compromise - Such a person
has the right to file a separate suit to
challenge the decree if it affects their rights.
(Para 17, 18, 19, 20)

Ownership of the property in dispute - Plaintiffrespondents filed a suit seeking a permanent
injunction against the defendant-petitioner -
alleging attempts to take possession and construct
on disputed land - sought to declare a previous
compromise decree as void - petitioner contended
- suit was barred by law - filed an application
under Order VII Rule 11 for rejection of plaint -
which was dismissed by both trial court and
appellate court. (Para 2, 3, 15)

HELD: - Application under Order VII Rule 11 was
rightly rejected as the issues raised by the
petitioner require evidence to be examined during
trial, and the plaint discloses a valid cause of
action. Courts below did not commit any illegality
in rejecting the application under Order VII Rule
11 CPC.(Para 24, 25)

Petition dismissed. (E-7)

List of Cases cited:

## Text

114 INDIAN LAW REPORTS ALLAHABAD SERIES
U.P.Z.A. & L.R. Supreme Court further
held that, courts below were right in
coming to the conclusion that legality or
otherwise of insertion of names of
purchaser in record of rights and deletion of
name of the plaintiff from such record can
only be decided by revenue court since the
name of purchasers had already been
entered into. Only revenue court can record
a finding whether such action was in
accordance with law or not and it cannot be
decided by the civil court.

31. This court in case of Rajeshwar
Gupta and another Vs. Smt. Gauri Devi
and others reported in 2017 (134) RD 34
has held as under:-

" 14. It is settled law that a suit
for injunction can be maintained also on
the ground of possessory title. A person in
possession over some property can defend
his possession and claim an injunction for
protecting such possession, from the entire
world, except the true owner."

32. From the discussion made above
that it is clear that for filing a suit
simpliciter for injunction there is no
prohibition in any of the clauses of section
206 of the UP Revenue Code, 2006. The
jurisdiction of the civil court to entertain a
suit for injunction is neither expressly
barred nor by implication .

33. In my opinion, the courts below
were right in holding that suit will not be
barred by provisions of Section 206 of the
U.P. Revenue Code and have committed no
illegality in dismissing the application of
the petitioner under Order 7 Rule 11 C.P.C.

34. The writ petition lacks in merit
and is therefore, dismissed.
----------
(2024) 4 ILRA 114
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.03.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 3022 of 2024
(Civil)

Rajeev Gupta ...Petitioner
Versus
Swatantrata Sangram Senani Ashrit
Sangathan Pilibhit & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prabha Shankar Pandey, Sri Satish
Kumar

Counsel for the Respondents:
Sri Arpit Agarwal

(A) Civil Law - Rejection of Plaint - Code of
Civil Procedure, 1908 - Order VII Rule 11 -
rejection of a plaint if it does not disclose a
cause of action or is barred by law, Order 23
Rule 3A - Bar to suit to set aside a
compromise decree , Specific Relief Act,
1963 - Section 38, Section 41(j) - Perpetual
injunctions and when they can be granted -
Compromise decree - Cause of action -
Locus standi - Supervisory jurisdiction -
Only the plaint averments can be seen at the
time of considering an application under
Order VII Rule 11 C.P.C. (Para -13)

(B) Civil Law - Code of Civil Procedure, 1908
- Order VII Rule 11 - plaint can be rejected
under Order VII Rule 11(d) of C.P.C. if the
statements in the plaint itself reveal that the
suit is barred by law or does not disclose a
cause of action - Court must limit itself to
the statements in the plaint without
considering
any
external
evidence
or
written statements. (Para 10, 11, 13, 16)

(C) Civil Law - Code of Civil Procedure,
1908 - Order 23 Rule 3A - Compromise
decree under Order 23 Rule 3A cannot be
4 All. Rajeev Gupta Vs. Swatantrata Sangram Senani Ashrit Sangathan Pilibhit & Ors.
115
challenged by a person who was not a
party to the compromise - Such a person
has the right to file a separate suit to
challenge the decree if it affects their rights.
(Para 17, 18, 19, 20)

Ownership of the property in dispute - Plaintiffrespondents filed a suit seeking a permanent
injunction against the defendant-petitioner -
alleging attempts to take possession and construct
on disputed land - sought to declare a previous
compromise decree as void - petitioner contended
- suit was barred by law - filed an application
under Order VII Rule 11 for rejection of plaint -
which was dismissed by both trial court and
appellate court. (Para 2, 3, 15)

HELD: - Application under Order VII Rule 11 was
rightly rejected as the issues raised by the
petitioner require evidence to be examined during
trial, and the plaint discloses a valid cause of
action. Courts below did not commit any illegality
in rejecting the application under Order VII Rule
11 CPC.(Para 24, 25)

Petition dismissed. (E-7)

List of Cases cited:

1. M/s. Sree Surya Developers & Promoters Vs N.
Sailesh Prasad & ors., 2022 (1) ACJ 655 (S.C.)

2. Tej Bahadur Vs Narendra Modi, 2021 (1) ACJ
109 (S.C.)

3. Bharvagi Constructions & anr. Vs Kothakapu
Muthyam Reddy & ors., 2017 (137) RD 574

4. Kamala & ors. Vs. K.T. Eshwara Sa, (2008) 12
SCC 661

5. Madanuri Sri Rama Chandra Murthy Vs. Syed
Jalal, (2017) 13 SCC 174: (2017) 5 SCC (Civ) 602

6. Smt. Suraj Kumari Vs. Dist. Judge, Mirzapur &
ors., AIR 1991 Alld 75

7. Siddalingeshwar & ors. Vs. Virupaxgouda &
ors., AIR 2003 Karnataka 407

8. Khalil Haji Bholumiya Salar & ors. Vs. Parveen
& ors., 2013 (6) BomCR 841
(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This petition has been filed by the
defendant-petitioner
for
the
following
relief:

"a. To pass an order under the
supervisory jurisdiction of this Hon'ble
High Court, setting aside the impugned
order dated 04.12.2023 passed by the
learned
Civil
Judge
(Senior
Division)/F.T.C., Pilibhit in Application
No. 18 Ga under Order 7 Rule 11(d) read
with Section-151 of C.P.C. filed in Original
Suit No. 399 of 2021 (Swatantrata Sangram
Senani
Ashrit
Sangathan
through
President- Vishwa Mitra Tandon and
Others vs. Rajeev Gupta) and impugned
order dated 27.02.2024 passed by the
learned Additional District Judge, Court
No. 1, Pilibhit in Civil Revision No. 94 of
2023
(Rajeev
Gupta
vs.
So-called
Swatantrata Sangram Senani Sangathan,
Pilibhit through President- Vishwa Mitra
Tandon and Others).

b. To pass an order under the
supervisory jurisdiction of this Hon'ble
High
Court,
staying
the
further
proceedings of Original Suit No. 399 of
2021 (Swatantrata Sangram Senani Ashrit
Sangathan through President- Vishwa
Mitra Tandon and Others vs. Rajeev
Gupta), pending before the Court of Civil
Judge (Senior Division)/F.T.C., Pilibhit."

2. Brief facts of the case are that the
plaintiff-respondents
instituted
Original
Suit No. 399 of 2021 (Swatantra Sangram
Senani Ashrit Sangthan through President-
Vishwa Mitra Tandon and 2 others Vs.
Rajeev Gupta) for the relief that defendant
be restrained from taking possession and
raising construction over the land in dispute
belonging to the plaintiffs and also that
116 INDIAN LAW REPORTS ALLAHABAD SERIES
decree passed in O.S. No. 287 of 2020
(Rajeev Gupta Vs. Karan Verma) dated
03.11.2020 be declared void. Defendantpetitioner appeared in the suit and moved
an application under Order VII Rule 11
C.P.C. for rejection of the plaint on the
ground that the plaintiffs have no locus
standi to file the suit and the suit is also
barred by Section 38 read with Section 41
(J) of Specific Relief Act, 1967. The
aforesaid application filed by the petitioner
was rejected by the trial court by judgment
and order dated 04.12.2023. Against the
judgment and order dated 04.12.2023
passed by Civil Judge (Senior Division),
Pilibhit, Civil Revision No. 94 of 2023 was
filed by the defendant-petitioner and the
same had also been dismissed by the
Additional District Judge, Court No.1
Pilibhit by its judgment and order dated
27.02.2024. Hence present petition.

3. Learned counsel for the petitioner
contended that plaintiffs have no cause of
action and no locus standi to file the
present suit. It has been further contended
by learned counsel for the petitioner that
the suit as filed by the plaintiff is barred
under Section 38 and 41 (J) of the Specific
Relief Act. It is next contended by learned
counsel for the petitioner that second relief
claimed
by
the
plaintiff
that
the
compromise judgment and decree passed in
O.S. No. 287 of 2020 (Rajeev Gupta Vs.
Karan
Verma)
dated
03.11.2020
be
declared void is hit by provisions of Order
23 Rule 3-A of the C.P.C. Courts below
have rejected the application filed by the
petitioner erroneously without considering
the law as cited by the petitioner before the
court below.

4. Learned counsel for the petitioner
relied upon the judgments of the Supreme
Court as well as of this Court in case of
M/s.
Sree
Surya
Developers
and
Promoters Versus N. Sailesh Prasad and
Ors. reported in 2022 (1) Apex Court
Judgments 655 (S.C.), Tej Bahadur
Versus Narendra Modi reported in 2021
(1) Apex Court Judgments 109 (S.C.),
Bharvagi
Constructions
and
another
Versus Kothakapu Muthyam Reddy and
others reported in 2017 (137) RD 574.

5. It will be useful to examine the
provisions of law relied upon by the
learned counsel for the petitioner before
considering the submissions made by the
learned counsel for the petitioner.

6. Rule 11 of the Order VII CPC is
quoted as under :-

"11. Rejection of plaint - The
plaint shall be rejected in the following
cases:-

(a) where it does not disclose a
cause of action;

(b) where the relief claimed is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;

(c) where the relief claimed is
properly valued but the plaint is written
upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to
supply the requisite stamp-paper within a
time to be fixed by the Court, fails to do so;

(d) where the suit appears from
the statement in the plaint to be barred by
any law;

[(e) where it is not filed in
duplicate];

[(f) where the plaintiff fails to
comply with the provisions of rule 9];

[Provided that the time fixed by
the Court for the correction of the
valuation or supplying of the requisite
4 All. Rajeev Gupta Vs. Swatantrata Sangram Senani Ashrit Sangathan Pilibhit & Ors.
117
stamp-papers shall not be extended unless
the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by
any cause of an exceptional nature from
correcting the valuation or supplying the
requisite stamp-papers, as the case may be,
within the time fixed by the Court and that
refusal to extend such time would cause
grave injustice to the plaintiff.]"

7. Section 38 of the Specific Relief
Act 1963 relates to perpetual injunctions.
Section 38 and Section 41(J) of Specific
Relief Act is quoted as under:

"38. Perpetual injunction when
granted.-

(1) Subject to the other provisions
contained in or referred to by this Chapter,
a perpetual injunction may be granted to
the plaintiff to prevent the breach of an
obligation existing in his favour, whether
expressly or by implication.

(2) When any such obligation
arises from contract, the court shall be
guided by the rules and provisions
contained in Chapter II.

(3) When the defendant invades
or threatens to invade the plaintiff's right
to, or enjoyment of, property, the court may
grant a perpetual injunction in the
following cases, namely:- (a) where the
defendant is trustee of the property for the
plaintiff;

(b)
where
there
exists
no
standard for ascertaining the actual
damage caused, or likely to be caused, by
the invasion;

(c) where the invasion is such
that compensation in money would not
afford adequate relief;

(d) where the injunction is
necessary to prevent a multiplicity of
judicial proceedings.

41. Injunction when refused.-

(a).........(i).....

(j) when the plaintiff has no
personal interest in the matter."

8. Order 23 Rule 3 and Rule 3(A) of
the C.P.C. is quoted as under:-

"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 or 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 is the same as the subjectmatter 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 he 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. From the reading of Clause 11 of
Order 7 C.P.C., it is clear where the suit
appears from the statements in the plaint
118 INDIAN LAW REPORTS ALLAHABAD SERIES
that plaintiff has no cause of action or to be
barred by any law, the Court shall reject the
plaint.

10. Order VII Rule 11 CPC provides
that the plaint shall be rejected "where the
suit appears from the statement made in the
plaint that plaintiff has no cause of action
or to be barred by any law". In order to
decide whether the plaintiff has no cause of
action or the suit is barred by law, it is the
statement in the plaint will have to be
construed. The Court while deciding such
an application under Order 7 Rule 11
C.P.C. must have due regard only to the
statements made in the plaint. Whether the
suit is barred by any law or the plaintiff has
no cause of action must be determined from
the statements in the plaint and it is not
open to decide the issue on the basis of any
other
material
including
the
written
statement in the case.

11. In Kamala and others Vs. K.T.
Eshwara Sa; (2008) 12 SCC 661, S.B.
Sinha, J speaking for the Bench examined
the ambit of Order VII Rule 11(d) CPC and
observed: (SCC 668-69, paras 21 and 22)

"21. Order 7, Rule 11(d) of the
Code has limited application. It must be
shown that the suit is barred under any
law. Such a conclusion must be drawn from
the averments made in the plaint. Different
clauses in Orders 7, Rule 11, in our
opinion, should not be mixed up. Whereas
in a given case, an application for rejection
of the plaint may be filed on more than one
ground specified in various sub-clauses
thereof, a clear finding to that effect must
be arrived at. What would be relevant for
invoking clause (d) of Order 7 Rule 11 of
the Code is the averments made in the
plaint. For that purpose, there cannot be
any addition or subtraction. Absence of
jurisdiction on the part of a court can be
invoked at different stages and under
different provisions of the Code. Order 7
Rule 11 of the Code is one, Order 14 Rule 2
is another.

22. For the purpose of invoking Order
7 Rule 11(d) of the Code, no amount of
evidence can be looked into. The issues on
merit of the matter which may arise
between the parties would not be within the
realm of the court at that stage. All issues
shall not be the subject matter of an order
under the said provision."

12. In case of Madanuri Sri Rama
Chandra Murthy Vs. Syed Jalal; (2017) 13
SCC 174: (2017) 5 SCC (Civ) 602; the
Apex Court has summarized the legal
position as follows :-

"The plaint can be rejected under
Order 7 Rule 11 if conditions enumerated
in the said provision are fulfilled. It is
needless to observe that the power under
Order 7 Rule 11 CPC be exercised by the
Court at any stage of the suit. The relevant
facts which need to be looked into for
deciding the application are the averments
of the plaint only. If on an entire and
meaningful reading of the plaint, it is found
that the suit is manifestly vexatious and
meritless in the sense of not disclosing any
right to sue, the court should exercise
power under Order 7 Rule 11 CPC. Since
the power conferred on the Court to
terminate civil action at the threshold is
drastic, the conditions enumerated under
Order 7 Rule 11 of CPC to the exercise of
power of rejection of plaint have to be
strictly adhered to. The averments of the
plaint have to be read as a whole to find
out whether the averments disclose a cause
of action or whether the suit is barred by
any law. It is needless to observe that the
4 All. Rajeev Gupta Vs. Swatantrata Sangram Senani Ashrit Sangathan Pilibhit & Ors.
119
question as to whether the suit is barred by
any law, would always depend upon the
facts and circumstances of each case. The
averments in the written statement as well
as the contentions of the defendant are
wholly immaterial while considering the
prayer of the defendant for rejection of the
plaint. Even when the allegations made in
the plaint are taken to be correct as a
whole on their face value, if they show that
the suit is barred by any law, or do not
disclose cause of action, the application for
rejection of plaint can be entertained and
the power under Order 7 Rule 11 CPC can
be exercised. If clever drafting of the plaint
has created the illusion of a cause of
action, the court will nip it in the bud at the
earliest so that bogus litigation will end at
the earlier stage."

13. Thus, from the law laid down by
the Apex Court, it is clear that only the
plaint averments can be seen at the time of
considering an application under Order VII
Rule 11 C.P.C.

14. With the help of counsel for the
petitioner, I have perused the copy of the
plaint which has been filed as Annexure
No. 2 to the present petition.

15. As per the plaint case, the
property in dispute was constructed by the
various freedom fighters as office for the
freedom fighters, which was used after the
independence for various social activities.
The aforesaid property was maintained by
the freedom fighters and after their death
by their successors. It had also been stated
that plaintiff nos. 2 and 3 along with other
successors
of
freedom
fighters
were
managing the property in dispute. After
independence, in the premises of the
property in dispute Bhai Kishan Lal and
Chunni Lal used to carry business in the
name of Haryana Handloom with the
permission of the then Manager of the
premises and in lieu thereof they used to
get premises painted and repaired. Later on
Bhai Kisan Lal and Chunni Lal handed
over their business to the defendant in the
suit and the defendant carried on business
in the name of Haryana Handloom in the
premises in dispute. Earlier, the business
was being carried in the tent but later on
with the permission of the then manager,
the tent was removed and a tin shade was
constructed by the defendant with the
permission of the plaintiffs. It had also
been stated that on the western side of the
premises, a room was constructed by the
father of the plaintiff no.2 in the memory of
his wife and apart from that, in the
aforesaid premises on the eastern- northern
corner, two rooms were constructed. The
defendant was carrying business in the
name of Haryana Handloom since 1988
and for the last five years used to keep his
goods in the room constructed by the father
of the plaintiff no. 2. Later on the defendant
turned dishonest and instituted suit being
Original Suit No. 287 of 2020 (Rajeev
Gupta
Vs.
Karan
Verma)
with
the
allegation that the plaintiff was the owner
in possession of the property in dispute and
the defendant was a licensee of a tin shade.
The aforesaid suit was filed by the
defendant in the present suit against one
Karan Verma, who was the close associate
of the defendant. Karan Verma, defendant
in the O.S. No. 287 of 2020 filed a written
statement admitting the averments made in
the plaint and an agreement was entered
into between the defendant in the present
suit and his friend Karan Verma and the
suit was decreed in terms of compromise
by judgment and decree dated 03.11.2020.
It was also stated that the defendant Karan
Verma had no concern with the property in
dispute. It had been further stated that on
120 INDIAN LAW REPORTS ALLAHABAD SERIES
the basis of compromise decree passed in
Original Suit No. 287 of 2020, the
defendant in the suit got the map
sanctioned from the prescribed authority
regulated area, Pilibhit for raising a
construction after demolishing the existing
constructions on 03.06.2020. After the map
was sanctioned, the defendant removed his
tin shade and started demolishing the room
constructed by the father of the plaintiff no.
2. After coming to know about the
activities of the defendant, complaints were
made by the plaintiff no. 2 with the
administrative authorities and when the
matter was opposed by the plaintiffs, the
defendant informed them regarding the
decree passed in Original Suit No. 287 of
2020. Thereafter, the plaintiff no. 2 moved
an application before the Nagar Pallika
Parishad, Pilibhit for correction of revenue
records and on the aforesaid application by
order dated 06.07.2021 Executive Officer,
Nagar
Officer
Pilibhit
directed
for
corrections
of
revenue
records.
An
application was also made by the plaintiff
no. 2 for cancellation of map passed by the
prescribed authority regulated area, Pilibhit
by order dated 06.07.2020. On the
aforesaid
application,
the
map
was
cancelled by order dated 17.08.2021. On
05.09.2021, the defendant tried to take
forceful possession of the property in
dispute and tried to raise construction,
which was resisted by the plaintiff no. 2,
therefore, the present suit (O.S. No. 399 of
2021) was filed by the plaintiff against the
defendant for the relief of permanent
injunction as well as for a declaration
declaring
compromise
decree
dated
03.11.2020 passed in Original Suit No. 287
of 2020 as void.

16. In the present case, from the
reading of the plaint as a whole and
proceeding on the basis that the averments
made therein are correct, which is what the
Court is required to do so it cannot be said
that the pleadings ex facie do not disclose
any cause of action. There is a serious
dispute between the plaintiffs and the
defendants as to the ownership of the
property in dispute which is a question of
fact and can only be decided after framing
an issue in this respect and considering the
evidence led by the parties at the time of
deciding the suit.

17. So far as contention of learned
counsel for the petitioner is that the second
relief as claimed by the plaintiff is barred
by Order 23 Rule 3(A) C.P.C. is also
misconceived for reason that the plaintiffs
in the present suit are not parties to the
compromise, which has been entered into
between the present defendant and one
Karan Verma, defendant in Original Suit
No. 287 of 2020. The plaintiff-respondents
are not party to the aforesaid suit and
therefore Order 23 Rule 3(A) will not come
in their way to challenge the compromise
decree by filing a suit for setting aside or
declaring the same void.

18. This Court in case of Smt. Suraj
Kumari Vs. District Judge, Mirzapur and
others reported in AIR 1991 Alld 75 has
held as under :

22.
The
petitioner's
second
submission regarding the applicability of
O.23, R. 3-A of the Code of Civil Procedure
is misconceived the provision is confined
only to the parties to the suit. The said
provision is not applicable to a stranger to
the said compromise decree. A suit by
stranger to set aside the compromise
decree, which affects his rights is not
barred by the said provision. Order 23,
Rule 3-A of the Code of Civil Procedure
cannot be read dehors its earlier provision
4 All. Rajeev Gupta Vs. Swatantrata Sangram Senani Ashrit Sangathan Pilibhit & Ors.
121
of the same chapter. The said provision is
only a part of the entire Chapter of Order
23 of the Code of Civil Procedure which
prescribes provisions for withdrawal and
adjustment of the suit. Order 23 Rule 3 of
the Code of Civil Procedure provides for a
situation where the parties have arrived at
a compromise. Order 23, Rule 3 and Rule
3-A of the Code of Civil Procedure as
added by Amending Act No. 104 of 1976
read together, makes it clear that a party to
the suit is debarred from filing suit for
setting aside compromise decree on the
ground of being unlawful. Such a party has
remedy by moving appropriate application
before the Court concerned which has
passed the compromise decree.

23. The said provision does not
bar the present petitioner who was not a
party to the said compromise decree to file
a suit. As such there is no force in the
petitioner's contention that a suit for setting
aside the compromise decree entered into
between Sri Nagarmal and Smt. Paradevi
was barred by O.23, R. 3-A of the Code of
Civil Procedure. The suit at the instance of
present
petitioner
for
setting
aside
compromise decree entered into between
Smt. Paradevi and Sri Nagarmal is
maintainable in law. In support of this
contention
the
petitioner
has
placed
reliance on AIR 1985 Karnataka 270, Smt.
Tarabai v. Krishnaswamy Rao. Since the
said provision does not bar the petitioner
from filing the suit the decision is of no
help to the petitioner."

19. The Karnatka High Court in case
of
Siddalingeshwar
&
others
Vs.
Virupaxgouda and others reported in AIR
2003 Karnataka 407 has held as under:

A bar is imposed to challenge the
compromise in a separate suit because a
party to a compromise is entitled to
challenge the compromise as not lawful,
either by filing an application in the same
suit or by filing an appeal under Order 43
Rule 1A. But such remedies are available
only to the parties to the suit. A person who
is not a party to the suit, cannot obviously
file an application in the suit, or an appeal,
to challenge a compromise as being not
lawful.

20. The Bombay High Court in case
of Khalil Haji Bholumiya Salar and
others Vs. Parveen and others reported in
2013 (6) BomCR 841 relying upon the
judgment of Allahabad High Court in case
of Suraj Kumari (supra) as well as
Karnatka High Court in Siddalingeshwar
& others (supra) has held as under :

Order 23 of CPC deals with
adjustment/compromise of a suit. An
appeal is a continuation of the suit. Section
107(2) CPC provides that subject to subsection 1, the appellate Court shall have
same powers and shall perform as nearly
as may be the same duties as are conferred
and imposed by the Code on Courts of
original jurisdiction in respect of suits
instituted therein. Therefore, the provisions
of Order 23 apply in full force to appeal
proceedings. By amendment of CPC, Rule
3A has been inserted in Order 23 to bar a
suit to set aside a decree on the ground that
the compromise on which the decree is
based is not lawful. Therefore, if a party to
a suit who enters into a compromise in
terms of which a consent decree is made,
wants to challenge it on the ground that it
is not lawful, the remedy available to him,
is either to file an application in the very
suit to recall the consent decree on the
ground that compromise is not lawful, or is
vitiated by fraud, or to file an appeal under
Order 43 Rule 1A CPC, contending that the
compromise was not lawful and that it
122 INDIAN LAW REPORTS ALLAHABAD SERIES
ought not to have been recorded. A
compromise decree is based on the
agreement arrived at between the parties,
which gets a seal of approval from the
Court. A stranger to the suit is obviously a
stranger to the agreement of compromise.
He cannot file an application either in the
suit or in the appeal proceedings to
challenge a compromise decree as he is not
a party to the suit. Therefore, the bar under
Rule 3A of Order 23 cannot be extended to
him. The provision must confine only to the
parties to the suit, who are parties to the
agreement to compromise. Hence, I am in
respectful agreement with the decisions of
the Allahabad High Court and Karnataka
High Court, holding that a stranger to a
compromise
decree
cannot
file
an
application in a suit or an appeal to
challenge a compromise, as not being
lawful, but must file a separate suit for the
purpose. The application filed by the
applicants, therefore, is required to be
dismissed as not maintainable. Since the
application is not at all maintainable, there
is no need to enter into discussion on the
rival contentions as regards the merits of
the application. The Civil Application is
dismissed.

21. The judgment of the Supreme
Court in case of M/s Sree Surya
Developers and Promoters (supra) relied
upon by the Counsel for the petitioner is
distinguishable on facts as in case of M/s
Sree Surya Developers and Promoters
(supra), the suit was filed for declaring the
compromise decree void by one of the
parties to the compromise and not by the
person who was not party to the suit or
compromise. Similarly in case of Bharvagi
Constructions (supra) a suit was filed by
the some of the defendants (who were party
to the award) against the plaintiff and the
remaining defendants for declaring the
award passed by Lok Adalat on the basis of
compromise illegal and null & void having
been obtained by playing fraud was held
not maintainable. There also the plaintiff
filed the suit challenging the award was
party to the award and therefore the suit
was held not maintainable.

22. So far as the contention of learned
Counsel for the petitioner is that the suit
filed by the plaintiff-respondent was barred
in view of Section 38 and Section 41(j) of
the Specific Relief Act, 1963 is concerned,
it cannot be said from the reading of the
plaint that the plaintiff has no personal
interest in the matter. In the judgment
relied upon by the learned Counsel for the
petitioner in case of Tej Bahadur Vs.
Narendra Modi (supra), it has been held
by the Supreme Court the election petition
was rightly rejected under Order VII Rule
11 C.P.C., as the petitioner was neither an
elector for such constituency nor he was a
candidate and as such he has no cause of
action which invest him with right to sue.
Judgment in case of Tej Bahadur (supra) is
also distinguishable on facts and is of no
help to petitioner.

23. The ground which were taken by
the petitioner in his application under Order
VII Rule 11 can be pleaded by the
petitioner in his written statement and the
same can be decided after framing an issue
in this regard after considering the evidence
of the parties at this stage of hearing of the
suit, but the same cannot be looked into at
the time of considering an application
under Order VII Rule 11 as it is only on the
basis plaint averment the application has to
be decided.

24. In view of the above discussion, I
am of the view that the courts below have
committed no illegality in rejecting the
4 All. Rajni Rani Vs. State of U.P. & Ors.
123
application filed by the petitioner under
Order VII Rule 11 C.P.C.

25. Accordingly, the writ petition is
dismissed.

26. No order as to costs.
----------
(2024) 4 ILRA 123
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Special Appeal No. 56 of 2024

Rajni Rani ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Rakesh Kumar Rathore, Sri Shyam
Narayan Verma, Sri Radha Kant Ojha (Sr.
Advocate)

Counsel for the Respondents:
Sri Siddharth Khare

Civil Law - Hindu Marriage Act, 1955 -
Section 13 - Code of Criminal Procedure,
1973 - Section 125 - Family Pension -
Marriage between deceased employee (Bhojraj
Singh) and first wife (Usha Devi) governed by
Hindu Marriage Act, 1955; cannot be dissolved
by compromise in maintenance proceedings
under Sec. 125 Cr.P.C., which is limited to
determining
maintenance
amount.
Consent
cannot confer jurisdiction on Magistrate to annul
marriage; dissolution requires decree of divorce
by competent civil court. Appellant's (second
wife, Rajni Rani) claim to family pension
rejected, as no such decree obtained and first
marriage
subsists.
Claim
of
first
wife's
subsequent
marriage
disputed;
requires
declaration by competent court for nullity.
Distinguished Deoki Panjhiyara (supra) as it
involved void marriage due to bigamy (preexisting marriage), not applicable here where
first marriage was valid. (Paras 9-13)
Special Appeal Dismissed.

List of Cases cited:

1. Deoki Panjhiyara Vs Shashi Bhushan Narayan
Azad, 2012 Supreme (SC) 899 (Paras 6, 12)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Qamar Hasan Rizvi, J.)

1. Heard Sri Radha Kant Ojha,
learned Senior Counsel for the appellant
and Sri Siddharth Khare, learned counsel
appearing on behalf of the opposite party.

2. This appeal arises out of an order
passed by learned Single Judge in Writ-A
No. 11483 of 2023 whereby the writ
petition itself has been dismissed.

3. Facts of the case as have been
noticed by learned Single Judge are that
one Bhojraj Singh was an assistant teacher
in Maharaja Tej Singh, Junior High School
Aurandh,
Vikash
Khand
Sultanganj,
District Mainpuri. He superannuated on
30.06.2012 and later died on 02.10.2021.
The petitioner/appellant came up with a
case of payment of family pension on the
ground that she has contracted marriage
with late Bhojraj Singh and has been
residing as such for the last several years.
In order to put-forth its case, the petitionerappellant contended that though Bhojraj
Singh had initially contracted marriage
with contesting private respondent Usha
Devi but the marriage ultimately did not
succeed and the marital parties parted
ways. Proceeding under Section 125
Cr.P.C. had been initiated by Usha Devi in
which a compromise was arrived at, as per