# Thakur Ram Jankee v. Additional District Judge, Basti and others

- **Citation:** (2003) 2 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-08
- **Case number:** Civil Misc. Writ Petition No.21533 of 1987
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/thakur-ram-jankee-v-additional-district-judge-basti-and-others-40120
- **Pages:** 4

## Headnote

Code of Civil Procedure- Ord. 23 Rule-3B- Representation Suit- Compromise
Decree-obtained without permission of
Court-
Suit
dismissed
in
Defaultrestoration
along
with
Compromise
application
engaging
another
new
counsel obtained-The role of Presiding
Judge Sri A.K. Srivastava found doubtfulconsidering long period of litigation cost
of Rs.1000/- per year basis emposed-
court has to objectively find that the
Compromise was Convention for non
parties-Compromise Decree set aside.

Held- Para 5 & 6

In the present case, there is nothing on
record to show that the court was taken
into confidence about the binding nature
of the compromise on non-parties. The
word,
"expressly
recorded
in
the
proceedings" signify that the leave of the
court for entering into a compromise
should invariably be recorded in writing
in the proceedings. Mere mentioning of
the
compromise
in
the
order-sheet
would not amount to compliance of the
requirements of the rule. For express
approval, the court has to objectively
find that the proposal of compromise in
the facts of each case was just and
convenient even for the non-parties
against whom the compromise could
operate.

The proceedings in the suit also casts a
doubt upon the integrity of the then
Presiding Officer Sri A.K. Srivastava. In
my opinion, even on this score the entire
proceedings including the compromise
decree cannot be sustained
Case law discussed:
AIR 1988 Punj. and Haryana 124

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
452
by this court in exercise of power under
article 226 of the Constitution.

9. In view of what has been stated
above, it is not necessary for this Court to
consider the other arguments advanced on
behalf of Sri G.L. Tripathi, learned
counsel appearing for the workman as the
writ petition deserves to be dismissed.

10. For the reasons stated above, this
writ petition fails and is hereby dismissed.
The interim order, if any, stands vacated.
There will be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 8.7.2003

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No.21533 of 1987

Thakur Ram Jankee

...Petitioner
Versus
Additional District Judge, Basti and
others

 ...Respondents

Counsel for the Petitioner:
Sri J.P. Pandey
Sri K.N. Tripathi
Sri Tarun Verma
Sri V.N. Pandey

Counsel for the Respondents:
Sri Dinesh Pathak
S.C.

Code of Civil Procedure- Ord. 23 Rule-3B- Representation Suit- Compromise
Decree-obtained without permission of
Court-
Suit
dismissed
in
Defaultrestoration
along
with
Compromise
application
engaging
another
new
counsel obtained-The role of Presiding
Judge Sri A.K. Srivastava found doubtfulconsidering long period of litigation cost
of Rs.1000/- per year basis emposed-
court has to objectively find that the
Compromise was Convention for non
parties-Compromise Decree set aside.

Held- Para 5 & 6

In the present case, there is nothing on
record to show that the court was taken
into confidence about the binding nature
of the compromise on non-parties. The
word,
"expressly
recorded
in
the
proceedings" signify that the leave of the
court for entering into a compromise
should invariably be recorded in writing
in the proceedings. Mere mentioning of
the
compromise
in
the
order-sheet
would not amount to compliance of the
requirements of the rule. For express
approval, the court has to objectively
find that the proposal of compromise in
the facts of each case was just and
convenient even for the non-parties
against whom the compromise could
operate.

The proceedings in the suit also casts a
doubt upon the integrity of the then
Presiding Officer Sri A.K. Srivastava. In
my opinion, even on this score the entire
proceedings including the compromise
decree cannot be sustained
Case law discussed:
AIR 1988 Punj. and Haryana 124

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
parties.

2. This writ petition is primarily
directed against a compromise decree
passed by the trial court and upheld by the
revisional court vide its order dated
26.4.1983 and 10.3.1987.

3. The brief facts for decision of this
writ petition are that Sri Beni Madho Lal
built a Ram Janki temple and gifted a
house, well etc, including plot no.97 vide
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2 All] Thakur Ram Jankee V. Additional District Judge, Basti and others
453
registered
endowment
deed
dated
17.11.1936. A trust was created to be
managed by a sarvarkar and Pujari. It is
admitted to the plaintiff-respondents that
at the relevant time, Sri Madan Mohan
was the pujari and sarvarkar of the Deity
and the trust. The plaintiff respondent
who is employed as a clerk in the local
civil courts, instituted a suit no.359 of
1971 for injunction, demolition and
possession. After exchange of pleadings
and striking of issues, a date was fixed for
hearing. It appears that the matter was
adjourned on couple of occasions for
filing a compromise, but ultimately the
suit was dismissed for non-prosecution on
25.4.1975. An application for recall was
made which was fixed for 9.3.1979 and
then for 27.5.1979. It is the case of the
petitioner that without his knowledge a
new vakalatnama on his behalf in favour
of Virendra Nath Pandey, Advocate was
filed, along with an alleged compromise
on 27.3.1979 in the restoration case. It
appears, on 27.3.1979 the case was
restored and on the next day i.e.
28.3.1979 the suit was decreed on the
basis of the compromise. When the
petitioner went to court on 27.5.1979, the
next date fixed, he came to know about
the fraud committed on him and the deity.
The petitioner moved a recall application
for setting aside the compromise decree.
It was alleged therein that the petitioner
never engaged Virendra Nath Pandey and
the entire transaction was fraud and
prayed for calling a report from an expert
for its opinion and examination of
Virendra Nath Pandey etc. However, the
application was dismissed on 26.4.1983
and so also the revision has been
dismissed by order dated 10.3.1987. All
these three orders dated 28.3.1979,
26.4.1983 and 10.3.1987 are under
challenge in this writ petition.
4. The learned counsel for the
petitioner has urged that the compromise
was hit by Or.23 r. 3-B. His contention is
that Rule 3-B mandates that in any suit of
a representative nature, any compromise
entered
into
without
the
express
permission in writing of the court would
be void. However, learned counsel for the
respondents urged that the suit was not
representative in nature and, therefore, the
requirements of Rule 3 (B) will not apply.
Explanation to Rule 3 (B), details the
nature of a representative suit for the
purposes of Rule 3(B). It would be useful
to note Rule 3(B) of Or.23 which reads as
under :

"3B. Before granting such leave the
court shall give notice in such manner as
it may think fit to such persons as may
appear to it to be interested in the suit.

Explanation-
In
this
rule
"representative suit" means, -
(a) a suit under section 91 or section
92,
(b) a suit under rule 8 of Or.1.
(c) a suit in which the manager of an
undivided Hindu family sues or is sued
as representing the other members of the
family.
(d) Any other suit in which the decree
passed may, by virtue of the provisions of
this court or of any other law for the
time being in force, bind any person who
is not named as party to the suit."

5. From a bare perusal of the
Explanation to rule 3 (B), it is apparent
that where a decree binds any person who
is not named as a party to the suit, would
be deemed to be representative suit for the
purposes of the said rule. The petitionerdefendant is a public trust which has its
followers and devotees of the deity for
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
454
which the trust was created. It has not
been averred that the court was taken into
confidence about the binding nature of the
compromise on the followers of the trust
and the deity. Even the compromise does
not show that they were informed about
such a compromise. In some what similar
facts where one of the two co-landlords
had entered into a compromise with the
tenant in a eviction suit. It was found that
the co-landlord was not taken into
confidence that a non-party (co-landlord)
would also be bound by the decree. The
Punjab and Haryana High Court in the
case of Dr. Madan Gopal v. Deen Dayal
& another (A.I.R. 1988 Punjab &
Haryana 124) held such a compromise to
be void, in view of Rule 3(B). In the
present case, there is nothing on record to
show that the court was taken into
confidence about the binding nature of the
compromise on non-parties. The word,
"expressly recorded in the proceedings"
signify that the leave of the court for
entering into a compromise should
invariably be recorded in writing in the
proceedings. Mere mentioning of the
compromise in the order-sheet would not
amount to compliance of the requirements
of the rule. For express approval, the
court has to objectively find that the
proposal of compromise in the facts of
each case was just and convenient even
for the non-parties against whom the
compromise could operate. Therefore,
merely recording the compromise and
deciding the suit on its basis would not
satisfy one of the sacrosanct object of rule
3 (B). A bare perusal of the compromise
shows that it is a one sided document.
Normally, a compromise consists of 'give
and take', but the compromise in question
curiously relieves the trust of all its rights
in the property in favour of an individual.
In the case at hand, as the requirements of
rule 3 (B) were not satisfied, the
compromise was void and has to be
ignored.

6. Learned counsel for the petitioner
has further urged that the entire exercise
of restoration of the case and decision of
the suit on the basis of the compromise
was fraudulent. In paragraph 12 of the
writ petition, it has been averred that 25th
May, 1979 was the date fixed for disposal
of the restoration application. This fact
has not been denied in paragraph 10 of the
counter affidavit. Further in paragraph 15
of the writ petition, it is clearly stated that
the restoration was allowed on 27th
March, 1979 while the suit itself was
decided on the basis of the compromise
on 28th March, 1979. This averment too
has not been denied in paragraph 13 of the
counter affidavit. These facts, coupled
with the fact that the plaintiff was an
employee in the civil court, leaves no
room of doubt that he was able to
maneuver the proceedings of the court
and was also able to procure the
compromise decree. The proceedings in
the suit also casts a doubt upon the
integrity of the then Presiding Officer Sri
A.K. Srivastava. In my opinion, even on
this score the entire proceedings including
the
compromise
decree
cannot
be
sustained.

7. From the discussion and noting
the facts and also the way in which the
proceedings were conducted, this court
would be failing in its duty if heavy cost
is not imposed upon Sri Astbhuja Prasad,
respondent no.3, the plaintiff in the suit.
Though, it is difficult to quantify the
costs, but keeping in mind that the suit
was instituted in 1971 which was
dismissed for default in 1975 and then
recalled in 1979 and this writ petition of
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2 All] M/s Baidyanath Ayurved Bhawan (P) Ltd. V. State of U.P. and others
455
the year 1987 is being disposed off in
2003 at lease Rs.1000/- a year should be
the costs payable by the respondent no.3.

8. For the discussions and reasons
hereinabove, the writ petition succeeds
and is allowed and the impugned orders
dated 28th March, 1979 26th April, 1983
and 10th March, 1987 are hereby quashed.
The petitioner shall be entitled to costs of
Rs.28,000/- which should be paid to the
petitioner by the respondent no.3 through
an account payee bank draft drawn in
favour of the petitioner trust within a
period of six weeks from today. In case
the aforesaid costs is not paid within the
said time, the same shall be recovered as
arrears of land revenue by the Collector,
Basti and paid to the petitioner trust.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.7.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 12372 of 2003

M/s Baidyanath Ayurved Bhawan (Pvt. )
Ltd.

...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri Arun Tandon

Counsel for the Respondents:
Sri B.D. Mandhyan, S.C.

(A) U.P. Krishi Utpadan Mandi Adhiniyam
1964-
Section
9
(i)-Domestic
consumption-means-consumption
by
himself-petitioner-manufacturer
of
Ayurvedic Medicine-storage of Gur, Ghee
and Amla etc. -held-not liable to possess
the licence.

Held- Para 11

In our opinion this petition deserves to
be allowed on the ground that the
expression "domestic consumption" in
the proviso to Section 9 (1) means
consumption by the person himself who
is doing the storing. Hence in our opinion
the petitioner does not require to take a
licence under Section 9 of the Act.

(B)
U.P.
Krishi
Utpadan
Mandi
Adhiniyam-1964 Agricultural ProduceDomestic use in the word internal
includes consumption in factory also-not
limited to home only.

Held- Para 21

The meaning of 'domestic consumption'
in the proviso to Section 9 (1) is
'internal' and is not limited to 'home'.
The petitioner uses the agricultural
produce which he is buying for internal
purpose, that is, for the purpose of
consumption in its factory, and not for
external consumption by some one else
to whom he may transfer the agricultural
produce.
25 SCT 222 196 U.S. 207, 19 F 679

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
for quashing the proceedings under
section 37 of the U.P. Krishi Utpadan
Mandi Adhiniyam, 1964 (hereinafter
referred to as the Act) pending before the
Chief Judicial Magistrate, Allahabad as
also the summoning order.

Heard learned counsel for the parties.

2. The petitioner is a company
registered under the Indian Companies
Act. It has an industrial unit for
manufacture of Ayurvedic medicines at
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