JUDGMENT
Shacheendra Dwivedi, J.
1. They are heard on admission.
2. This second appeal is preferred by the plaintiff against the impugned judgment and decree, which has confirmed the judgment and decree of the trial Court.
3. The suit was filed by the appellant for declaration and permanent injunction alleging that he was the bhumiswami and person in possession of the disputed lands, and was, therefore, entitled to get his name so entered in the revenue records. It was also prayed that the respondents be permanently injuncted not to alienate the suit property and not to interfere with the plaintiffs possession of the disputed lands.
4. The dispute has a chequered history.
The parties are close relatives. During the
pendency of the suit, a written-deed of com
promise under Order 23, Rule 3 of C.P.C. was
filed on 28-4-92 in respect of the disputed
lands, which was signed by the plaintiff-
appellant and respondents 1 to 4. The
signatures of the parties were also duly veri
fied by their respective counsel. But later on,
plaintiffs-appellant Kailash Narain filed an
application in the Court on 24-7-92 that he
does not want to stick to the compromise rior
wants it to be verified and recorded, but
prayed for its cancellation because the condi
tions agreed upon between the plaintiff and
the respondents were allegedly not complied
with by the defendants. The further allegation
was that defendants had played fraud on the
plaintiff for entering into compromise and
had not carried out the conditions. The
compromise was, therefore, prayed to be
rejected, as no order thereon was passed by
the Court till then.
5. The learned trial Court considered the circumstances of the filing of compromise, duly signed by the parties and verified by their counsel. As no specific allegation had also appeared in the application moved by the plaintiff for the rejection of compromise, the learned trial Court found that the compror mise was lawful, and, therefore, passed the decree in terms of the compromise. The appeal preferred by the appellant was also dismissed by the lower appellate Court under the impugned judgment.
6. Shri K. K. Lahoti, learned counsel for the appellant has very vehemently argued in this Court that firstly, the learned Courts below erred in passing the decree in terms of compromise, in respect of which no evidence or even the statements of the parties were recorded. Secondly, that the compromise could not be acted upon as it was not lawful since the fraud was played by the defendants on the plaintiff-appellant. It was also contended that in view of the allegation of fraud, the learned Court below was bound to hold an enquiry and could not have acted upon the compromise, which was sought to be rejected by the plaintiff at the later stage.
7. Shri Arun Mishra, Advocate appearing for the respondents urged forcefully that under Order 23, Rule 3 of C.P.C., the Court was required to see whether the compromise was lawful or not. Shri Mishra in support of his contention has placed reliance on Bhaja Govinda Maikap v. Janaki Dei, AIR 1980 Orissa 108; wherein, the Court had considered the powers of the Court under Order 23, Rule 3 of the Code of Civil Procedure, in the face of an objection of one of the parties to the compromise. Therefore, Shri Mishra submitted that the lower appellate Court also committed no mistake in dismissing the appeal.
8. I have considered the rival contentions and perused the records.
9. I have found that the compromise was filed by the parties on 28-4-92, but as the Presiding Judge was on leave, no order could be passed on that date, and the case was adjourned for 1-5-92. On 1-5-92, one Indra-bhan Singh had filed an application under Order 1, Rule 10 of C.P.C. read with Order 6, Rule 17 and Section 151 of C.P.C., in which it was alleged thai he holds the general power of attorney from the plaintiff in respect of the suit lands, and when the compromise was filed by the parties in the Court on 28-4-92, plaintiff Kailash Narain had not signed the compromise under his free will, but his signatures were obtained under the threat. The compromise was also not read over to the plaintiff. He had therefore prayed that he be permitted to be substituted as ‘plaintiff. A copy of the application was supplied to the parties and the case was adjourned on many dates thereafter. It was only on 24-7-92, that the plaintiff had filed the application for rejecting the compromise on the averments stated hereinabove. In the application filed by the plaintiff, although he had alleged that the fraud was played upon him, no particulars of the fraud were disclosed. The holder of power of attorney of the plaintiff had made no allegation of the fraud in his application dated 1 -5-92 and, on the contrary, had stated that the signatures of the plaintiff were obtained under threat and the compromise was not read over to him,
10. In the application, the plaintiff had stated that the conditions of compromise were not complied with; whereas, the compromise itself does not contain any such conditions, and under the compromise only a decree in terms of compromise was sought. It is well settled that when the allegations of fraud are made by a party in order to succeed on that plea, it is necessary to plead the facts which constitute the fraud. If the requisite particulars of fraud are not pleaded, mere vague allegation would hardly amount to a plea of fraud. In the absence of such particulars in the present case and on the unsupported allegations from any circumstance or document, the learned trial Court had rightly rejected the application of the plaintiff, finding the compromise to be lawful. The validity of the compromise decree in such circumstances, would be dependent on the legal validity of the compromise on which it rests. In such circumstances, the Court is required to see whether the compromise in question was lawful and was not void or voidable under the Indian Contract Act. If the compromise itself is fradulent, then it shall be deemed to be void within the meaning of the explanation to the proviso of Rule 3, and as such, not lawful. But in the instant case, as discussed above, as no circumstances had appeared nor the requisite particulars, were given, of any fraud, the bare allegation of the plaintiff in view of the deed of compromise, was rightly rejected. Rule 3 of Order 23 of C.P.C. does not make it obligatory on the Court to hold enquiry and if the Court is satisfied about the existence of lawful compromise, which is signed by both the parties, the Court can proceed with and act upon such compromise.
11. The Court cannot be required to hold an enquiry if the fraud is vaguely alleged and even when such allegation appeared to be wholly incorrect on record. The compromise being lawful, the learned trial Court committed no mistake in passing the decree. The lower appellate Court could not be shown to have committed any illegality, As such, I have found no illegality or perversity in the impugned judgmenl and decree.
12. In Bhaja Govinda Mdikap (AIR 1980 Orissa 108) (supra), the Orissa High Court had considered the powers of the Court under Order 23, Rule 3 of C.P.C. In the face of an objection of one of the parties to the compromise. Relying upon several authorities of the different High Courts and one of the Privy Council referred to in the decision, the High Court held that once the Court was satisfied that there was a lawful compromise, it was for the Court to record the same and no option lay with the Court to act otherwise.
13. Their Lordships of Supreme Court in K. Venkata Seshian v. K. Ramasubbamma, 1991 AIR SCW 808, expressed their accord with the principle communicated by the High Court of Orissa in Bhaja Govinda Maikap (supra) and observed that where the compromise petition is genuine and lawful, the same has to be acted upon.
14. Shri Lahoti has made a futile attempt to support the case of the appellant by relying upon the authorities of Param Singh v. Ghanram Singh, 1988 CCLJ (MP) 125 and Banwari Lal v. Chando Devi, AIR 1993 SC 1139, but the two authorities being distinguishable on facts, are of no avail to the appellant.
15. Under the authority of Banwari Lal (supra), the facts were that the plaintiff had challenged the order regarding compromise on the ground that his counsel in collusion with defendant of the said suit had played a fraud on him by filing a fabricated petition of compromise although no compromise had been effected between him and the defendant, and further details of the fraud were mentioned in the said petition. But the factual position of the present case is wholly different.
16. In the other case of Param Singh (supra), the Court had found that there was a mistake as to Survey Number included in the compromise decree as the land thereof was owned by the State and not by the parties to the compromise.
17. In view of the above discussion, I have found no substance in this appeal. It is, therefore, dismissed in limine.