# Ram Awadh Singh and Another v. The Addl. Commissioner Azamgarh and Others

- **Citation:** (2019) 1 ILRA 1236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-12
- **Case number:** Writ - C No. 18798 of 2001
- **Bench:** Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-awadh-singh-and-another-v-the-addl-commissioner-azamgarh-and-others-44440
- **Pages:** 10

## Headnote

A. U.P.Z.A.&L.R. Act, 1950: -Whether the
revenue courts under the provisions of
the U.P. Zamindari Abolition and Land
Reforms act, 1950 had the jurisdiction to
recall a compromise decree recorded
inter parties. (Para 1)

It would be open for a party to challenge the
compromise by either filing a petition referable
to the Proviso to Order XXIII Rule 3 or an
appeal in light of the provisions of Order XLIII
Rule 1A. (Para12)

Writ Petition allowed.

CHRONOLOGICAL LIST OF CASES CITED:

1:- (2012) 5 SCC 525, Horil Vs. Keshav

2:- (2014) 15 SCC 471, R. Rajanna Vs.
Venkataswamy

3:- (2005) 6 SCC 300, Kishun Alias Ram
Kishun (Dead) Through Lrs.Vs. Behari (Dead)

4:- (2006) 5 SCC 566, Pushpa Devi Bhagat v.
Rajinder Singh
5:- (2006) 5 SCC 566, Pushpa Devi Bhagat v.
Rajinder Singh

6:- (1993) 1 SCC 581, Banwari Lal v. Chando
Devi (E-7)

## Text

1236 INDIAN LAW REPORTS ALLAHABAD SERIES
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2019

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ - C No. 18798 of 2001

Ram Awadh Singh and Another
 ...Petitioners
Versus
The Addl. Commissioner Azamgarh and
Others ...Respondents

Counsel for the Petitioners:
Sri Ram Niwas Singh, Sri Madan Ji
Pandey, Sri V.K. Chadel

Counsel for the Respondents:
C.S.C., Sri Krishna Mohan Rai, Sri R.N.
Singh

A. U.P.Z.A.&L.R. Act, 1950: -Whether the
revenue courts under the provisions of
the U.P. Zamindari Abolition and Land
Reforms act, 1950 had the jurisdiction to
recall a compromise decree recorded
inter parties. (Para 1)

It would be open for a party to challenge the
compromise by either filing a petition referable
to the Proviso to Order XXIII Rule 3 or an
appeal in light of the provisions of Order XLIII
Rule 1A. (Para12)

Writ Petition allowed.

CHRONOLOGICAL LIST OF CASES CITED:

1:- (2012) 5 SCC 525, Horil Vs. Keshav

2:- (2014) 15 SCC 471, R. Rajanna Vs.
Venkataswamy

3:- (2005) 6 SCC 300, Kishun Alias Ram
Kishun (Dead) Through Lrs.Vs. Behari (Dead)

4:- (2006) 5 SCC 566, Pushpa Devi Bhagat v.
Rajinder Singh
5:- (2006) 5 SCC 566, Pushpa Devi Bhagat v.
Rajinder Singh

6:- (1993) 1 SCC 581, Banwari Lal v. Chando
Devi (E-7)

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
parties.

2. The sole question which has been
addressed on this petition is whether the
respondents 1 and 2 acting as revenue
courts under the provisions of the U.P.
Zamindari
Abolition
and
Land
Reforms Act, 19501 had the jurisdiction
to recall a compromise decree recorded
inter partes. The skeletal facts which
merit notice are as follows.

3. The dispute relates to Khata No.
102
falling
in
Village
Titlaukiya/Kishoreganj and Khata Nos. 65
and 78 falling in Village Mahendua,
Tehsil Belthara Road in the District of
Ballia. The petitioners filed suits referable
to Section 229-B of the 1950 Act
claiming rights under Section 164 of that
statute on the allegation that Maha Prasad,
the defendant in that suit, had executed an
agreement in their favour and on that
basis they were inducted in possession. It
is stated that during the pendency of that
suit a compromise was entered into between
the plaintiff petitioners and Maha Prasad
and pursuant thereto, compromise terms
were settled in writing and filed in the suit
proceedings on 23 December 1987. The
petitioners assert that the revenue court after
verifying the compromise decreed the suits
in terms thereof by a common judgment
dated 3 May 1989. Six years after the
aforesaid compromise decrees were passed,
Maha Prasad filed restoration applications.
1 All. Ram Awadh Singh and Another Vs. The Addl.Commissioner Azamgarh and Others 1237
In those applications it was asserted that the
compromise terms as framed and filed in
Court were an act of fraud and that the
plaintiff petitioners had taken advantage of
the fact that he was an illiterate person.
While these restoration applications were
pending, Maha Prasad is stated to have died.
According to the petitioners, no applications
for substitution were filed and in view
thereof, the restoration applications should
have been dismissed as having abated.
However, this issue need not be gone into in
light of the principal legal question that has
been raised and addressed. By a common
judgment dated 6 December 1997, the
Court of the Deputy Collector, the second
respondent
herein,
allowed
these
applications and restored both the suits to
their original numbers. Aggrieved by that
decision the petitioners filed two revisions
before
the
Commissioner
Azamgarh
Division which were ultimately transferred
and placed for disposal before the first
respondent here. These revisions have been
dismissed by the order dated 31 March
2001 impugned herein. When the instant
writ petition was entertained, a learned
Judge of the Court granted stay of the
impugned orders and further provided for
stay of all proceedings taken pursuant to the
judgments impugned herein.

4. Learned counsel for the petitioner
has principally contended that once the
compromise had been duly verified and
the suits decreed in terms thereof, no
application
for
restoration
was
maintainable. On a more fundamental
plane,
it
was
contended
that
the
respondents 1 and 2 acting as revenue
courts in any case did not have the
jurisdiction or authority to either entertain
the
applications
or
to
recall
the
compromise decree which came to be
entered. Reliance in support of this
submission was placed upon the decision
rendered by the Supreme Court in Horil
Vs. Keshav2.

5. Learned counsel for the respondent,
on the other hand, submitted that the issue of
whether the compromise had been lawfully
entered into, made with the free consent of
parties and not an outcome of fraud were
questions and issues which necessarily had to
be answered by the Court which had framed
the decree itself. According to the learned
counsel, in light of the bar placed by Order
XXIII Rule 3A, C.P.C. since no suit could be
maintained to set aside a decree on the ground
that the compromise on which the decree was
based was not lawful, the only remedy
available to the respondents was to file the
restoration applications. According to the
learned counsel, the provisions as made in
Section 151, C.P.C. sufficiently empowered
the revenue courts to recall the compromise
decree if it were established to have been
made and obtained as an outcome of fraud.
Learned counsel for the respondent has in
support of his submissions placed reliance
upon the decision of the Supreme Court
rendered
in
R.
Rajanna
Vs.
Venkataswamy3.

6. Before dealing with the rival
submissions it would be apposite to
briefly notice the statutory position as
existing and laid in place by the Civil
Procedure Code with respect to a
challenge to compromise decrees. Section
96(3) provides that no appeal shall lie
from a decree passed by the Court with
the consent of parties. Order XXIII Rule
3 deals with the subject of compromise of
suits. The said provision is in the
following terms:

"3.
Compromise
of
suit.-
Where it is proved to the satisfaction of
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 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.]

Order XXIII Rule 3A reads
thus: -

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

7. A careful reading of the
provisions
aforementioned
establishes
that where parties assert that a suit has
been adjusted wholly or in part by virtue
of a lawful agreement or compromise, the
Court on being satisfied shall proceed to
record the agreement, compromise or
satisfaction and proceed to pass a decree
in accordance therewith. The Court while
recording its satisfaction with respect to
the agreement or compromise stated to
have been arrived at must also bear in
mind that the terms of settlement are not
void or voidable under the Indian
Contract Act, 1872. This caveat stands
placed in light of the Explanation
appended to Rule 3. The Proviso to Rule
3 empowers the Court to decide the
question of whether an adjustment or
satisfaction has in fact been arrived at and
reached. The Proviso comes into play
where parties dispute an adjustment or
satisfaction in fact having been reached.
Order XXIII Rule 3A bars a suit to set
aside a decree on the ground that the
compromise on which it was based was
not lawful.

8. Order XLIII Rule 1(m) as it
stood prior to its deletion by the Code of
Civil Procedure (Amendment) Act,
19764 provided for an appeal against an
order passed under Order XXIII Rule 3
recording or refusing to record an
agreement, compromise or satisfaction.
The 1976 Amendment Act while spelling
out the Objects and Reasons for the
deletion of clause (m) noted that it was
being omitted because an aggrieved party
had the remedy of preferring an appeal
against a decree where he could urge that
the compromise ought not to or ought to
have been recorded, as the case may be.
The provision for an appeal against a
compromise decree was introduced by the
1976 Amendment Act itself with the
insertion of Order XLIII Rule 1-A
which reads thus:

"1-A. Right to challenge nonappelable orders in appeal against
decrees.-(1) Where any order is made
under this Code against a party and
thereupon any judgment is pronounced
against such party and a decree is drawn
1 All. Ram Awadh Singh and Another Vs. The Addl.Commissioner Azamgarh and Others 1239
up, such party may, in an appeal against
the decree, contend that such order should
not have been made and the judgment
should not have been pronounced.

(2) In an appeal against a decree
passed in a suit after recording a
compromise or refusing to record a
compromise, it shall be open to the
appellant to contest the decree on the
ground that the compromise should, or
should not, have been recorded.]"

9. The statutory position which thus
emerges is that firstly a bar operates against
a separate suit being filed challenging a
decree which came to be made on the basis
of a compromise. This clearly appears to
flow from the provisions made in XXIII
Rule 3A. Although, Section 96(3) continues
to exist in the statute book and bars a decree
passed by a Court with the consent of
parties being challenged by way of appeal, a
specific provision for appeal against a
decree passed either on compromise or
refusing to record a compromise has now
been made available in terms of the
provisions made in Order XLIII Rule
1A(2). The provisions made in Order
XXIII Rule 3 and more particularly the
Proviso appended thereto, empowers the
Court itself to undertake an enquiry whether
the compromise or settlement has in fact
been arrived at. Even otherwise, the
substantive provision made in Order XXIII
Rule 3 requires the Court concerned to
satisfy itself whether a lawful agreement or
compromise has in fact been arrived at.

10. Dealing with the issue of
challenge to a compromise in suit
proceedings, three learned Judge of the
Supreme Court in Kishun Alias Ram
Kishun (Dead) Through Lrs. Vs.
Behari (Dead) by Lrs.5 observed thus:

"That apart, we are of the view
that the High Court was in error in
holding that the appeal filed by Kishun
against the decree of the trial court
accepting a compromise which was
disputed by him, was not maintainable.
When on a dispute in that behalf being raised,
an enquiry is made (now it has to be done in
view of the proviso to Order XXIII Rule 3 of
the Code added by Act 104 of 1976) and the
suit is decreed on the basis of a compromise
based on that enquiry, it could not be held to
be a decree passed on consent within the
meaning of Section 96(3) of the Code. Section
96(3) contemplates non-appellability of a
decree passed by the court with the consent of
parties. Obviously, when one of the parties
sets up a compromise and the other disputes it
and the court is forced to adjudicate on
whether there was a compromise or not and to
pass a decree, it could not be understood as a
decree passed by the court with the consent of
parties. As we have noticed earlier, no appeal
is provided after 1.2.1977, against an order
rejecting or accepting a compromise after an
enquiry under the proviso to Order XXIII
Rule 3, either by Section 104 or by Order
XLIII Rule 1 of the Code. Only when the
acceptance of the compromise receives the
imprimatur of the court and it becomes a
decree, or the court proceeds to pass a decree
on merits rejecting the compromise set up, it
becomes appealable, unless of course, the
appeal is barred by Section 96(3) of the Code.
We have already indicated that when there is a
contest on the question whether there was a
compromise or not, a decree accepting the
compromise on resolution of that controversy,
cannot be said to be a decree passed with the
consent of the parties. Therefore, the bar under
Section 96(3) of the Code could not have
application. An appeal and a second appeal
with its limitations would be available to the
party feeling aggrieved by the decree based on
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
such a disputed compromise or on a rejection
of the compromise set up."

11. As is evident from the recordal of
facts in Kishun, the High Court had
proceeded to dismiss the second appeal
taking the view that it would not be
maintainable in view of the bar placed by
Section 96(3). The Supreme Court in
Kishun, however, proceeded to hold that the
bar placed by Section 96(3) would apply
only in a case where the consent, settlement
or agreement is not challenged by parties.
Their Lordships held that where a dispute is
raised with respect to the existence of the
compromise itself and whether it was in fact
lawfully entered into, the decree passed in
terms of that alleged compromise cannot be
understood to be one made with the consent
of parties. The decision is an authority for the
proposition that the bar placed by Section 96
(3) can have no application where the factum
of a valid compromise having been arrived at
is itself assailed. Although this decision does
not specifically refer to the provisions made
in Order XLIII Rule 1A, it essentially holds
that the remedy of an appeal against a
compromise decree would be available to an
aggrieved party. In R. Rajanna, the decision
which is relied upon by the learned counsel
for the respondent, their Lordships framed
the principal question to be whether the
validity of a compromise decree could be
challenged by way of a separate suit.
Although, the High Court had found that
such a right would exist, in R. Rajanna that
view was overruled and the judgment of the
High Court set aside. While doing so, the
Supreme Court explained the legal position
in the following terms:

"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 which
the decree is based was not lawful. This
implies that no sooner a question relating
to lawfulness of the agreement or
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
1 All. Ram Awadh Singh and Another Vs. The Addl.Commissioner Azamgarh and Others 1241
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.

12. The upshot of the above
discussion is that the High Court fell in a
palpable error in directing the plaintiff to
take recourse to the remedy by way of a
separate suit. The High Court in the
process
remained
oblivious
of
the
provisions of Order 23 Rules 3 and 3-A
CPC as also orders passed by the City
Civil Court rejecting the plaint in which
the trial court had not only placed reliance
upon Order 23 Rule 3-A but also the
decision of the Court in Pushpa Devi case
[Pushpa Devi Bhagat v. Rajinder Singh,
(2006) 5 SCC 566] holding that a separate
suit was not maintainable and that the
only remedy available to the aggrieved
party was to approach the Court which
had passed the compromise decree. The
following passage from the decision
ofPushpa Devi case [Pushpa Devi Bhagat
v. Rajinder Singh, (2006) 5 SCC 566] is,
in this regard, apposite: (SCC p. 576, para
17)

"17. ... 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."

We may also refer to the
decision of this Court in Banwari Lal v.
Chando Devi [Banwari Lal v. Chando
Devi, (1993) 1 SCC 581] where also this
Court had observed: (SCC p. 588, para
13)"

"13. ...
As such a party
challenging a compromise can file a
petition under proviso to Order 23 Rule 3,
or an appeal under Section 96(1) of the
Code, in which he can now question the
validity of the compromise in view of
Order 43 Rule 1-A of the Code."

12. As is evident from the above
extract
of
that
decision,
it
was
categorically held that while a separate
suit would not be maintainable, it would
be open for a party to challenge the
compromise by either filing a petition
referable to the Proviso to Order XXIII
Rule 3 or an appeal in light of the
provisions of Order XLIII Rule 1A.

13. Having noticed the legal position
as enunciated in the decisions aforenoted,
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court then proceeds to consider
whether the revenue courts in the facts of
the present case were justified in
entertaining
the
applications
for
restoration and whether they had the
requisite jurisdiction and authority to do
so. Insofar as the issue of jurisdiction is
concerned, that question clearly stands
answered against the respondents in light
of the decision in Horil. Significantly,
while the Supreme Court noticed the right
of parties to challenge a compromise in
accordance with the procedure laid in
place in terms of the Proviso to Order
XXIII Rule 3 and Order XLIII Rule
1A, it held that notwithstanding those
provisions of the Civil Procedure Code
applying to proceedings taken before a
revenue court, these courts would not be
competent to deal with these questions.
Explaining the provisions of the Civil
Procedure Code which stood attracted, the
Supreme Court in Horil held:

"9. 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 3A. 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.

10.
10. In Banwari Lal v.
Chando Devi [(1993) 1 SCC 581] this
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: (SCC p. 585)

"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 saying:

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

11. It was further held in
Banwari Lal [(1993) 1 SCC 581] in paras
13 and 14 as follows: (SCC pp. 588-89)

"13. When the amending Act
introduced a proviso along with an
Explanation to Rule 3 of Order 23 saying
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', 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
1 All. Ram Awadh Singh and Another Vs. The Addl.Commissioner Azamgarh and Others 1243
Explanation to the proviso says that an
agreement or compromise ''which is void
or voidable under the 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 Contract Act. Even Rule 1(m) of
Order 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 Rule 3 of Order
23, or an appeal under Section 96(1) of
the Code, in which he can now question
the validity of the compromise in view of
Rule 1-A of Order 43 of the Code.

14. ... The court before which it
is alleged by one of the parties to the
alleged
compromise
that
no
such
compromise had been entered between
the parties that court has to decide
whether the agreement or compromise in
question was lawful and not void or
voidable under the Contract Act. If the
agreement or the compromise itself is
fraudulent then it shall be deemed to be
void
within
the
meaning
of
the
Explanation to the proviso to Rule 3 and
as
such
not
lawful.
The
learned
Subordinate Judge was perfectly justified
in entertaining the application filed on
behalf of the appellant and considering
the question as to whether there had been
a lawful agreement or compromise on the
basis of which the court could have
recorded such agreement or compromise
on 27-2-1991. Having come to the
conclusion on the material produced that
the compromise was not lawful within the
meaning of Rule 3, there was no option
left except to recall that order."

14. However the matter did not rest
there since the Supreme Court proceeded
to consider the question whether the
power
to
assail
and
question
a
compromise decree as recognised to exist
in civil courts, could also be exercised by
revenue courts. Answering this issue, the
Supreme Court held thus: -

12.In the light of the decision
inBanwari Lal[(1993) 1 SCC 581] it
would prima facie appear that the High
Court was right in holding that the
appellant's suit was hit by the provisions
of Order 23 Rule 3-A and was not
maintainable.
But
the
significant
distinguishing feature in this case is that
the compromise decree which is alleged
to be fraudulent and which is sought to be
declared as nullity was passed not by a
civil court but by a Revenue Court in a
suit under Section 176 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950 (hereinafter "the Act").

13.Section 331 of the Act bars
the jurisdiction of the civil court and
provides that a suit under the Act can be
entertained by no court other than that the
courts specified in Schedule II to the Act.
A reference to Schedule II would show
that the court of original jurisdiction for a
suit under Section 176 of the Act for
division of a holding of a bhumidhar is
the Assistant Collector, First Class and
the courts of first appeal and second
appeal are the Commissioner and the
Board of Revenue respectively. Section
341 of the Act, of course, provides that
unless otherwise expressly provided by or
under the Act, the provisions of the Court
Fees Act, 1870; the Code of Civil
Procedure, 1908 and the Limitation Act,
1963, including Section 5 thereof would
apply to the proceedings under the Act.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

14.Though the provisions of the
Code of Civil Procedure have been made
applicable to the proceedings under the Act
but that would not make the authorities
specified under Schedule II to the Act as
"court" under the Code and those authorities
shall continue to be "courts" of limited and
restricted jurisdiction.

15.We are of the view that the
Revenue Courts are neither equipped nor
competent to effectively adjudicate on
allegations of fraud that have overtones of
criminality and the courts really skilled and
experienced to try such issues are the courts
constituted under the Code of Civil Procedure.

16.It is also well settled that
under Section 9 of the Civil Procedure
Code, the civil court has inherent
jurisdiction to try all types of civil
disputes unless its jurisdiction is barred
expressly or by necessary implication, by
any statutory provision and conferred on
any other tribunal or authority. We find
nothing in Order 23 Rule 3-A to bar the
institution of a suit before the civil court
even in regard to decrees or orders passed
in suits and/or proceedings under different
statutes before a court, tribunal or
authority
of
limited
and
restricted
jurisdiction.

17.In our view in the facts of the
case the provision of Order 23 shall not
act as a bar against the suit filed by the
appellant. We, accordingly set aside the
order
of
the
High
Court.
As
a
consequence, the suit will be restored
before the Munsif who is directed to
accord it priority having regard to the fact
that for the last 31 years it is stuck up on
the issue of maintainability. The trial
court should try to dispose of the suit
without any delay, and in any case, not
later than one year from the date of
receipt/production of a copy of this order.

15. Horil thus holds that in case a
compromise decree has been made by a
revenue court, an aggrieved party can
maintain an independent suit before a
regular civil court challenging that decree
on the ground of fraud or other like
grounds. While a reading of Horil to this
extent may ostensibly appear to be
discordant with the views expressed in R.
Rajanna and Kishun, it is manifest that
the remedy so evolved was principally
guided and necessitated by the conclusion
that revenue courts were neither equipped
nor competent to effectively adjudicate
upon allegations of fraud or to decide
questions whether a compromise was in
fact made the basis of a decree by way of
misrepresentation or fraudulent action. In
order to overcome such a situation where
revenue courts were found to be ill
equipped, the Supreme Court in Horil
proceeded to recognize the right of an
aggrieved party to challenge a compromise
decree as rendered by such courts by way
of a suit filed before the civil courts. In
light of the above, it is manifest that the
first and second respondents clearly lacked
the jurisdiction and authority to try the
restoration applications which sought to
recall decrees made inter partes on the
basis of a compromise. As a necessary
corollary it must also be held that the said
respondents could not have taken recourse
or resorted to Section 151 of the Civil
Procedure
Code
to
entertain
the
applications as made by the respondents.
In light of the aforesaid conclusions, this
Court finds itself unable to sustain the
orders impugned.

16. The writ petition is accordingly
allowed. The impugned orders dated 6
December 1997 and 31 March 2001 shall
consequently stand set aside.
---------
1 All. M/s Kamal Kumar Shukla Vs. State of U.P. and Others
1245
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ - C No. 24217 of 2019

M/s Kamal Kumar Shukla ...Petitioner
Versus
State of U.P. and Others ...Respondents

Counsel for the Petitioner:
Sri Suraj Singh, Sri Mukesh Prasad

Counsel for the Respondents:
C.S.C.

A. Rules 58 and 60 of the U.P. Mines
Minerals (Concession) Rules, 1963:- No
inspection
of

the
spot
and-no
consideration of the application of the
petitioner - no show-cause notice or
opportunity
of
personal
hearingcancelling the lease of the petitionerforfeiting
the
security
amount
and
blacklisted the petitioner for a period of
two years in exercise of power conferred
under Rules 58 and 60 of the U.P. Mines
Minerals (Concession) Rules, 1963.

The fundamental purpose behind the serving
of show cause notice is to make the notice
understand the precise case set up against
him which he has to meet. This would require
the statement of imputations detailing out the
alleged
breaches
and
defaults
he
has
committed, so that he gets an opportunity to
rebut
the
same.
Another
requirement,
according to us, is the nature of action which
is proposed to be taken for such a breach.
That should also be stated so that the noticee
is able to point out that proposed action is not
warranted in the given case, even if the
defaults/ breaches complained of are not
satisfactorily explained. When it comes to
black listing, this requirement becomes all the
more imperative, having regard to the fact
that it is harshest possible action. (Para-15)
B. Article 14, Constitution of India -
speaks of equality before the law and
equal protection of the laws. Equality of
opportunity should apply to matters of
public contracts

 (Para-17)

Blacklisting has the affect of preventing a
person from the privilege and advantage of
name into relationship with the Government
for purpose of aim. The fundamentals of fair
play require that a person concerned should
be given an opportunity to represent his case.
There is a complete failure to follow due
process,

Writ Petition allowed.

CHRONOLOGICAL LIST OF CASES CITED:

1:- (2014) 9 SCC 105 , Gorkha Security
Services Vs. Government (NCT of Delhi) and
others

2:- (1975) 1 SCC 70, Erusian Equipment &
Chemicals Ltd. Vs. State of West Bengal

3:- (1989) 1SCC 229, Raghunath Thakur Vs.
State of Bihar
4:- (2012) 11 SCC 257, Patel Engg. Ltd. v.
Union of India

5:- (1990) 3 SCC 752, M/s Mahabir Auto Stores
&Ors. Vs. Indian Oil Corporation Ltd. (E-7)

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

1. Heard Sri Mukesh Prasad, learned
Senior Advocate, assisted by Sri Suraj
Singh, learned counsel for the petitioner
and
Smt.
Archana
Singh,
learned
Additional
Chief
Standing
Counsel
representing respondents-State.

2. The petitioner has preferred the
present writ petition challenging the order
passed
by
the
District
Magistrate
Prayagraj dated 21.06.2019, copy of
which is appended as Annexure 1 to the
writ petition. A further prayer was also
made to issue a mandamus directing the