DHIRENDRA KUMAR GARG AND ORS.versusSMT. SUGANDHI BAI JAIN & ORS.

              DHIRENDRA KUMAR GARG AND ORS.
A
                                      v.
                 SMT. SUGANDHI BAI JAIN & ORS.

                          SEPTEMBER 23, 1988

B          [R.S. PATHAK, en, M.H. KANIA AND LAUT
                     MOHAN SHARMA, JJ.]

           Code of Civil Procedure, 1908: 0.32. Rule 7-Compromise
    decree--Minor represented by guardian-Application for leave--Court
    to see that compromise was not one sided.
c       The husband of respondent No. 1 sought eviction of the appel·
  !ants-tenants. The suit was decreed in his favour along with money
  decree for arrears of rent and damages. During the pendency of the
  appeal the plaintiff died and his legal representatives were substituted
  as respondents. Some of his children who were minor were placed
D under the guardianship of respondent No. 1. Consequent to a petition
  by the parties a compromise decree was passed setting aside the entire
  decree. The respondents thereafter challenged the compromise decree.
  The trial court dismissed the suit. On appeal the first appellate court
  reversed the decision. The High Court dismissed the appeal, preferred
  by the appellants.
E
        In this appeal by special leave it was contended for the appellants
  that as a consideration for the compromise they were giving up their
  right to claim costs which might have been decreed by the appellate
  court in case of their success on merits. The respondents' case was that
  the guardian of the minors was guilty of gross negligence in entering
F into the compromise by failing to take into consideration the interest of
  the minors.

         Dismissing the appeal,

        HELD: The decision of the courts below does not call for any
G interference. The compromise decree is fit to be set.aside on the ground
  of gross negligence. [199F; 199CJ

       The compromise was one sided whereby the minors were giving
  up their right under the trial court's decree both in respect of eviction
  as well as arrears of rent and damages. In view of the provisions of
H Order XXXII, Rule 7 of the Code of Civil Procedure it was essential
                                      196
                     D.K. GARG v. SMT. S.B. JAIN [SHARMA, J.]                  197

      for the Court to have granted permission to the guardian to enter
                                                                                     A
      into .the compromise only after considering all the relevant cir-
      cumstances. [198F; 198C-D]

            The earlier civil appeal is restored to its file before the Additional
      District Judge for disposal in accordance with law. [199G]
                                                                                     B
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 350
      of 1977.

           From the Judgment and Order dated 19.10.1976 of the Madhya
      Pradesh High Court in Second Appeal No. 385 of 1974.

            S.N. Kacker and Shri Narain for the Appellants.                          c
            Harish N. Salve, Mrs. P.S. Shroff, S.S. Shroff and S.A. Shroff
      for the Respondents.

            The Judgment of the Court was delivered by                               D

             SHARMA, J. This appeal by special leave arises out of a suit
      filed by the respondent for setting aside the decree in an earlier suit
      being Suit No. 61-A of 1955 instituted by Dammu Lal, husband of the
      respondent No. 1 and father of respondent No. 2 to 12, for eviction of
      the appellants from a building in Raipur which is in their occupation as       E
      tenants. Dammu Lal also prayed for a decree for arrears of rent and
      damages. The prayer for eviction was allowed along with a money
      decree for Rs.260 as arrears of rent and Rs.137 as damages. The
      tenants filed an appeal which was numbered as Civil Appeal No. 7-A
      of 1965. During the pendency Df the appeal Dammu Lal died, and his
      legal representatives were. substituted as respondents. Some of his            F
      children were minoi who were placed under the guardianship of their
      mother Smt. Sugandhibai, respondent No. 1. An application pur-
      porting to be a compromise petition on behalf of all the parties was
      filed before the court which was recorded and the suit was disposed of
      in its terms by the appellate court on 23.4.1966. According to the
      compromise the entire decree was set aside an0 1:1e suit was dismissed,        G
      with the parties bearing their own costs. The respondents have chal-
      lenged the compromise decree by the present suit.
"'I

            2. The trial court dismissed the suit. On appeal the first appel-
      late court reversed the decision, set aside the compromise decree and
      directed the Civil Appel No. 7-A of 1965 to be disposed of afresh in           H
    198         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

    accordance with law. By the impugned judgment the High Court dis-
A
    missed the second appeal preferred by the appellants.

          3. Mr. Kacker, the learned counsel appearing in support of the
    appeal, placed the facts relevant to the several questions raised by the
    parties and decided by the courts below and contended that the deci-
B   sion of the High Court is illegal on several grounds. We do not con-
    sider it necessary to go into all the questions disposed of by the courts
    below as the respondents are, in our view, entitled to succeed in the
    suit on one of the several points urged on their behalf which is discus-
    sed below.

         4. As has been stated earlier, some of the party-respondents in
c   Civil Appeal No. 7-A of 1965 including Kamal Kumar, one of the sons
    of Dammu Lal, were minor and were represented by Mr. Makasdar,
    Advocate. In view of the provisions of Order XXXII, Rule 7 of the
    Code of Civil Procedure, it was essential for the court to have granted
    permission to the guardian to enter into the compromise only after
D   considering all the relevant circumstances. From the records of the
    case it appears that the court before recording the compromise sanc-
    tioned leave in the following words:

                "As the appellant is prepared to forego the entire cost of
                the proceedings, it is in the interest of the minors and
E               benefit of the minors that this appeal be compromised. The
                minor-respondents are represented by senior counsel and
                his opinion is that it will be in the interest of the minor to
                compromise the appeal. In view of this, I have no reason to
                disagree' with him. I am satisfied that the compromise is in
                the interest of the minors, hence, I allow the application
F               and grant the necessary permission under Order 32 Rule 7
                C.P.C .. to the learned counsel of the minor respondents to
                compromise the appeal."

  On the face of it, the compromise was one sided whereby the minors
  were giving up their right 1mder the trial court's decree both in respect
G to· eviction as well as arrears of rent and damages. It is said that as a
  consideration for the compromise the appellants were giving up their
  right to claim costs which might have been decreed by the appellate
  court in case of their success CJD merits. According to the respondents'
  case which has been accepted by the two courts below the guardian of
  the minors was guilty of gross negligence in entering into the com-
H promise by failing to take into account the interest of the minors. On
               D.K. GARG v. SMT. S.B. JAIN [SHARMA, J.)               199

behalf of the appellants it has been contended that during the
                                                                           A
pendern;y of Civil Appeal No. 7-A of 1965 the M.P. Accommodation
Control Act was passed an.d the decree of the trial court was likely to be
set asid.e. In that view, it is urged, the minor's guardian through
Mr. Makasdar acted rightly in settling the dispute and thus saving a·
decree for costs which could have been passed against them.
                                                                           B
      5. According to the further case of the respondents the relevant
circumstances and the terms of the compromise were never explained
to the respondent No. 1 and Mr. Mokasdar asked for the court's
permission to enter into the compromise on behalf of the minor with-
out any instruction from their guardian in this regard. It is also urged
that the language of the order whereby the court granted its permis-
sion indicates that the court did not apply its mind independently.
                                                                           c
However, we do not consider it necessary to decide these points as also
several others raised by the parties as in our view the compromise
decree must be set aside on the ground of gross negligence.

        6. It has not been suggested on behalf of the appellants in the      D
 present case that there was any ground available to them to success-
 fully challenge the money decree passed in the earlier suit. Mr. Kacker
 also ha> not suggested any possible ground against that part of the
 decree. He, however, said that the decree was not for a substantial
 amount as it was for less than Rs.400, and should therefore be ignored
 for the purposes of this case. The question as to whether the amount        E
 was substantial or not has to be judged in the light of the circumstances
 in the case. Here the building in question was a small one fetching a
 small amount of rent and a sum of Rs.400 could not be ignored as
 inconsequential or unsubstantial. It has also to be remembered that
 even the cost in such a suit which was the sole consideration for the
 compromise could not be a large sum. Besides, neither the minors'           F
 advocate nor the court appears to have really considered the impact of
.the rent Act on the fate of the appeal which came in force during the
 pendency of the litigation. We, therefore, hold that the compromise
 decree is fit to be set aside, and the decision of the court below does
 not call for any interference. Accordingly Civil Appeal No. 7-A of
 1965 is restored to its file before the II Additional District Judge,       G
 Raipur and will now be disposed of in accordance with law. The appeal
 is dismissed with costs payable to respondents No. 1 to 12.

P.S.S.                                                Appeal dismissed.