ORDER
S.P. Srivastava, J.
1. Feeling aggrieved by the impugned order passed by the trial Court rejecting her application for amending the plaint by incorporating therein the proposed amendments she has now approached this Court seeking redress praying for the reversal of the impugned order.
2. Heard the learned counsel for the applicant as well as learned counsel representing the contesting respondents and perused the record.
3. The brief facts, shorn of details and necessary for the disposal of this revision lie in a narrow compass. The suit giving rise to the impugned order had been filed by the plaintiff-applicant in the year 1990 praying for a decree of declaration in respect of her title to the agricultural holdings in suit as well as a decree for permanent prohibitory injunction.
4. During the pendency of the suit an application dated 11-2-1997 was filed by the plaintiff seeking permission to amend the plaint by incorporating therein paragraph 4(a) and an additional relief. In the proposed paragraph 4(a) the plaintiff had asserted that the decree dated 28-7-1983 passed in Original Civil Suit No. 3-A/83, Vaijanti and others vs. Banwari and others, by the Civil Judge, Class II, Joura, was illegal being contrary to law and was liable to be cancelled being void and the plaintiff was not bound by that decree nor it could be enforced against her. The additional relief sought by the plaintiff was for a declaration that the decree passed in Original Civil Suit No. 3-A/83, Vaijanti and others vs. Banwari and others, dated 28-7-1983 passed by the Civil Judge, Class II, Joura, was illegal and void.
5. A perusal of the application filed by the plaintiff under Order 6, Rule 17, Civil Procedure Code, referred to hereinabove, indicates that the Civil Suit No. 3-A/83 was filed by the applicant during her minority wherein besides her mother she had also been impleaded as a plaintiff under the guardianship of her mother.
6. The aforesaid suit was decided in terms of a compromise. The plaintiff has asserted in the said application that the provisions of Order 37, Rule 2, Civil Procedure Code had not been complied with by the trial Court and the compromise was a collusive affair and her mother had acted against the interest of the plaintiff and had no authority to enter into any compromise. It is claimed that at the time of passing of the decree on the basis of the compromise the plaintiff was a minor and the present suit which had initially been filed by her as a minor under the guardianship of his maternal uncle was now being prosecuted by her on her attaining majority.
7. The aforesaid application was contested by the defendant on various grounds. The trial Court under the impugned order came to the conclusion that the decree passed in Original Civil Suit No. 3-A/83 was based on a compromise and in view of the prohibition contained in Order 23, Rule 3A, Civil Procedure Code no suit was maintainable challenging the decree based on compromise and in this view of the matter there could be no justification for allowing the amendment as prayed for.
8. Learned counsel for the applicant has contended that the decree passed in Original Civil Suit No. 3-A/83 was void and, therefore, there could be no impediment in permitting the amendments in the written statement. What has been asserted is that the provisions contained in Order 32, Rule 7, Civil Procedure Code expressly prohibit the next friend or next friend to enter into an agreement or compromise on behalf of a minor with reference to the suit without the leave of the Court expressly recorded in the proceedings.
9. The learned counsel for the contesting respondent has, however, pointed out that the provisions contained in Order 32, Rule 7(2) of the Code of Civil Procedure clearly indicate that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor. His contention is that, it is, therefore, obvious that in case the leave is granted it will not be voidable by the minor but in case no such leave is granted it shall remain voidable even as against the minor.
10. The provisions contained in Order 23, Rule 3-A of the Code of Civil Procedure prohibits the filing of the suit seeking setting aside of a decree on the ground that the compromise on which the decree is based was not lawful. In view of the explanation added to Order 23, Rule 3-A, Civil Procedure Code an agreement or compromise which is void or voidable under the Indian Contract Act is not to be deemed to be lawful within the meaning of the said Rule.
11. In the present case the plaintiff claimed that she was a minor at the time during the pendency of Civil Original Suit No. 3-A of 1983 which was decided on 20-7-1983 on the basis of a compromise but the provisions contained in Order 32, Rule 7, Civil Procedure Code had not been complied with. In the circumstances, therefore, it is urged that the decree became voidable even as against her. It has further been asserted that the whole compromise was a collusive affair and the action of the guardian was not in the interest of the minor. The assertions to the aforesaid effect indicate that the decree passed in Original Suit No. 3-A of 1983 is sought to be challenged on the ground that the compromise on which the said decree was based was not lawful.
12. In my considered opinion in the circumstances, therefore, the bar contained in Order 23, Rule 3A of the Code of Civil Procedure stood clearly attracted, and the only remedy available to the plaintiff was to get the decree set aside by moving an application before the Court which had passed the decree, which application had to be dealt with in accordance with law. This Court in its decision in the case of Bharat Bhooshan vs. Omprakash and another, Civil Revision No. 1428 of 1997, decided on 2-4-1998, had observed that :-
'A distinction has been drawn in the cases between a fraud practised upon a party and a fraud practised upon the Court. In all cases where the allegation is that there had been a fraud on Court, the matter could be investigated by the Court passing the impugned order/decree in a properly constituted application and it has ample jurisdiction to set aside the decree if it is satisfied that the Court was induced to pass the decree on the fraudulent representation made to it. But where the allegation is regarding fraud practised upon the party in relation to a matter extraneous or collateral to the decree, in that case the only remedy for the aggrieved party is to institute a suit to set aside the decree on the ground of fraud.
I am of the considered opinion that in all those cases where the allegation is that there had been a fraud on Court and the Court was induced to pass the decree on the fraudulent representation made to it and the order/decree had been obtained from the Court on a misrepresentation made to it, in that case the only remedy is to approach the same Court by means of a properly constituted application as it is that Court only which could be in a position to investigate into the matter and remedy the wrong committed by it.'
13. Considering the facts and circumstances brought on record and the conclusions indicated hereinabove no justifiable ground has been made out for any interference in the impugned order by this Court while exercising the revisional jurisdiction envisaged under section 115, Civil Procedure Code.
14. This revision is accordingly dismissed.
15. There shall, however, be no order as to costs.