Sanyasi Jena and ors. Vs. Mina Jena and ors. - Court Judgment

R.C. Patnaik, J.

1. Title Suit No. 30 of 1978 was filed in the court of the Subordinate Judge, Bhadrak, by opposite party No, 6 for partition. It was alleged in paragraph 6 of the plaint that in the property in suit, the plaintiff had 1/4 interest, the defendants 1 to 3 had 1/4, defendants 4 to 8 had 1/4 and defendants 9 to 12 had 1/4 interest. The plaintiff sought for a declaration of the shares of the different branches and for allotment of specific property. The suit was filed on 20-3-1978. On the next day i. e. on 21-4-78(?) the defendants 1, 3, 9, 10 and 12 entered appearance. As despite service of notice defendants 4 to 8 and 11 did not appear, they were set ex parte. The case was adjourned to 11-5-1978 for filing of written statement by defendants 1 to 3, 9, 10 and 12. On 11-5-1978 the said defendants sought further adjournment and the case was adjourned to 4-7-1978. On that day a petition of compromise entered into by the plaintiff and defendants Nos. 1 to 3, 9, 10 and 12 was filed. Under the compromise specific properties were allotted to the parties representing the various branches including defendants 4 to 8 and 11. The compromise was both a preliminary and final decree. Defendants 4 to 8 and 11 had not joined the compromise. But the parties who had entered the compromise, namely the plaintiff and defendants 1 to 3, 9, 10 and 12 stipulated that the suit be decreed ex parte against the non-appearing defendants 4 to 8 and 13 in terms of the compromise. The plaintiff and defendants 1 to 3, 9, 10 and 12 thereby sought to unilaterally bind the non-appearing defendants to the terms of the compromise.

2. The suit was one for partition. As per the averments in the plaint and the compromise petition defendants 4 to 8 and 11 are co-sharers and necessary parties to the suit for partition. Without them the suit for partition would not be maintainable and without their joining the compromise, a partition suit generally cannot be compromised I use the word 'generally' keeping in mind certain observations and illustrations given by Venkatasubba Rao, J. in C. Thiruvengada Mudalier v. Thengayelu Mudalier, AIR 1928 Mad 594. It is settled law that a compromise of partition suit would be ineffectual (generally) unless all the necessary parties to the action having interest in the property and likely to be prejudicially affected by the compromise join in it.

3. It is indisputable that without defendants 4 to 8 and 11 there cannot be legal and valid compromise of the suit for partition. It is unthinkable how without their consent or agreement the rest of the parties could determine their shares or make allotment of property. The learned Subordinate Judge, however, could not see through the game. He accepted the compromise as having been lawfully entered into and valid and recorded the same. He directed as under.:--

' ......... Hence the compromise being lawful it is recorded. The suit is decreed finally on the terms of compromise. The compromise petition, allotment sheet and sketch map are made part of Decree.'

The clear non-application of judicial mind is discernible from the aforesaid order. Whenever a petition of compromise is filed, the court should be very cautious, circumspect and scrutinising. Various aspects are to be considered which I need not enumerate, the most important being if the interest of any minor is involved. A mechanical approach might lead to consequences which have resulted in this case.

In Nityamoni Dasi v. Gokul Chandra Sen, (1911) 9 Ind Cas 210, the Calcutta High Court observed:--

'... The Decree of the Subordinate Judge must be set aside and the whole case retried, because, as this is a suit for partition of joint property, a Decree by consent amongst some only of the parties cannot possibly be maintained.....''

In that case, the partition suit was disposed of in terms of the compromise as between those who were parties to the compromise and ex parte against the non-consenting parties.

In Vir Singh v. Kharak Singh, AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:--

'.........the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the court was, therefore, fully justified in refusing to enforce it .........'

In Taraprasanna Sarkar v. Kalika Mohan Sarkar AIR 1924 Cal 80 Mookerjee and Rankim, JJ., held:--

'......there can be no compromise binding upon all the parties to a partition suit until and unless all the parties have joined in the compromise'

In fact, there cannot be a different view.

4. Another aspect is more curious. The suit is decreed ex parte in the circumstances and situations as contemplated by Order 9, Rule 6, of the Civil P. C. that is, after the stage of hearing. In this case, that stage has not been reached at all. So the learned Subordinate Judge has no jurisdiction to pass an ex parte decree as against the non-appearing defendants.

5. The matter however, did not rest here. On 4-5-1979 defendants 4 to 8 filed an application under Order 9, Rule 13 read with Section 151 of the Civil P. C. for the setting aside of the ex parte decree recorded against them on the basis of the compromise petition filed by the plaintiff and defendants 1 to 3, 9, 10 and 12. The application was registered as Misc. Case No. 77 of 1979. They made the plaintiff alone as the opposite party and by order dated 27-9-1979, the learned Subordinate Judge recalled the ex parte decree passed against them On 15-12-1979, defendants 1 to 3 filed an application under Section 151, of the Civil P. C. for setting aside the order dated 27-9-1979 setting aside the ex parte decree. The learned Subordinate Judge rejected the said application. This Revision has been filed by defendants 1 to 3 against the said order. Their plea was that in the proceeding under Order 9, Rule 13, of the Civil P. C. at the instance of defendants 4 to 8, they had not been impleaded as parties. By order dated 27-9-1979, the compromise had been made redundant. They wanted recall of the order passed behind their back.

6. Mr. K. N. Jena, for the petitioners forcefully submitted that the petitioners were necessary Parties to the proceeding under Order 9, Rule 13 of the Civil P. C. and the learned Subordinate Judge, went wrong in refusing to recall the order dated 27-9-1979 passed behind their back. Though I see much force in the submission, I decline to exercise my revisional jurisdiction. In my Opinion the wheel has come full circle. The injustice that had been done to defendants 4 to 8 and 11 by the unilateral compromise was undone by the recall of the ex parte decree albeit, in an irregular way. But having regard to the fact that justice has been done, I am not inclined to nullify the proceeding by a legalistic, approach-After all revisional jurisdiction is discretionary and may not be exercised unless 'the order if allowed to stand would occasion failure of justice or cause irreparable injury to the party against whom it was made'. As I have stated earlier, perpetuation of the ex parte decree against defendants 4 to 8 and 11 would result in grave miscarriage of justice.

7. In the result the revision is dismissed. No costs.