Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Sambhunath Basak And Anr. vs Abdul Kader And Ors. on 16 November, 1927
Equivalent citations: AIR 1928 Cal 247
Author: Duval


Duval, J.

1. In this case one Harendra Lal Basak and two minors, represented by their mother, sued in ejectment certain defendants. On 14th June 1926, the plaintiffs and defendant 3 filed a petition of compromise and a petition by the guardian for leave to compromise under the provisions of Order 32, Rule 7, Civil P.C., was also put in. By the compromise defendant 3 was to pay a certain nazar and get the tenancy of some of the lands. With the other defendants there was no proposed compromise. The learned Munsif did not then consider the petition of compromise because, as he expressed in his judgment, he wished to be satisfied after hearing the case as to whether it was in the interests of the minors. But on 28th August 1926, the three plaintiffs by another petition sought to withdraw from the compromise on the ground that there had been misrepresentation and that the guardian of the minors in fact knew nothing about it. The Munsif during the trial came to the conclusion that there was no misrepresentation by defendant 3 and he found that the compromise was not against the minors’ interests and, therefore, so far as the defendant 3 was concerned he gave a decree in terms of the compromise. The other defendants had apparently admitted the plaintiffs’ title and decrees were also made as against them. The appeal cams before the Subordinate Judge and was rejected.

2. A rule was then obtained from this Court and it is urged that no compromise on behalf of the minors could be effected except with leave of the Court and that, therefore, as before the compromise was sanctioned by the Court the guardian who wished to compromise had resiled from it the decree on compromise was illegal at least so far as these minors were concerned. Now, it is argued that, in view of the cases of Ranga Rao v. Rajagopala Raju [1899] 22 Mad. 378 and Gulab Dei v. Vaish Motor Co. , as the petition for compromise had been followed by another petition for leave to withdraw from compromise before the leave was granted, therefore, the Courts were bound not to accept the compromise as regards these two minors. This case, however, is not similar to those cases. In those cases the next friend of a minor agreed to compromise subject to leave of the Court and withdrew before leave was applied for. In the present ease, leave was applied for and the Munsif put off deciding whether be should give leave or not until he knew all about the position of the parties. The action of the Munsif I can quite understand. In the present case leave was applied for and the learned Munsif’s decision on the later petition and the decision in appeal had been that this later petition asking to withdraw was not a bona fide one. It is to be noted that the petition was not by the minors alone. It is by all three of the parties and is mainly concerned on whether there was misrepresentation to the major plaintiff. It is only in the last sentence of the petition that it is said that the lady guardian knew nothing about it. The learned Munsif has found that this petition was not a bona fide one but was got up by other interested parties owing to other facts in the suit. I cannot, therefore, say that the learned Munsif and the learned Subordinate Judge were wrong though the Munsif may not have acted strictly in accordance with the words of the Code in not granting leave to compromise on the first day. In this view and especially as the rulings I have referred to are not on the same facts as in the present case I am not prepared to exercise jurisdiction under Section 115 of the Code, and the rule is, therefore, discharged with costs. Hearing-fee one gold mohur.

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