HORILversusKESHAV & ANR.

                       [2012] 3 S.C.R. 1


                              HORIL                                    A
                                 v.
                        KESHAV & ANR.
                (Civil Appeal No. 776 of 2012)
                      JANUARY 20, 2012
                                                                       B
  [AFTAB ALAM ANO RANJANA PRASAD DESAI, JJ.]

       Code of Civil Procedure, 1908 - Or.XX/II, r.3-A - Suit -
 Maintainability -Appellant filed suit seeking declaration that
 decree passed by the Assistant Collector, Class-I, in a suit u/       C
 ss. 176, 178 and 182 of the Land Reforms Act was fraudulent,
 inoperative and not binding upon him - Allegation that decree
 passed by Assistant Collector was based on a fraudulent
 compromise petition - Defendants-respondents questioned
 the maintainability of the suit - Whether suit filed by appellant     o
 was barred in terms of Order XX/II Rule 3-A CPC - Held: A
 compromise forming the basis of the decree can only be
 questioned before the same court that recorded the
 compromise and a fresh suit for setting aside a compromise
 decree is expressly barred under Order XX/II Rule 3-A -               E
 However, in the instant case, the compromise decree alleged
 to be fraudulent was passed not by a civil court but by a
 revenue court in a suit u/s. 176 of the Land Reforms Act -
 Revenue courts are neither equipped nor competent to
 effectively adjudicate on allegations of fraud that has               F
 overtones of criminality and the courts really skilled and
 experienced to try such issues are the courts constituted under
 the CPC - Further, under s. 9 of CPC, the civil court has
 inherent jurisdiction to try all types of civil disputes unless its
jurisdiction is barred expressly or by necessary implication,          G
 by any statutory provision and conferred on any other tribunal
 or authority - Nothing in Order XX/II Rule 3-A bars the
 institution of a suit before the civil court even in regard to
 decrees or orders passed in suits and/or proceedings under

                                 1                                     H
     2          SUPREME COURT REPORTS                 [2012] 3 S.C.R.


  A different statutes before a court, tribunal or authority of limited
      anc;f restricted jurisdiction - In the facts of the case, provision
      of Order XX/fl not a bar against the suit filed by the appellant
     ,- Uttar Pradesh Zamindari Abolition and Land Reforms Act,
       1950 7" ss. 176, 178, 182, 331 and 341 and Schedule II.
  B
            The appellant filed suit seeking a declaration that the
      decree passed by the Assistant Collector, Class-I, in a suit
      under sections 176,. t78 and 182 of the U.P. Zamindari
      Abolition & Land Reforms Act, 1950 was fraudulent,
  C inoperative and not binding upon him. It was alleged that
      the dec.ree passed by the Assistant Collector was based
      on a fraudulent compromise petition. The defendants-
      respondents questioned the maintainability of the suit
      raising the contention that it was barred under the
     .provisions of Order XX.Ill Rule 3-A of CPC. The trial court
· D dismissed the objection and held that the suit was
      maintainable. The defendants-respondents took the
      matter in revision which was dismissed by the District
    . Judge. The respondents thereafter filed writ petition
      before the High Court which allowed the same holding
  E that .the suit filed by the appellant was not maintainable
      being barred in terms of Order XX.Ill Rule 3-A CPC.

          Allowing the appeal, the Court

        HELD: 1.1. A compromise forming the basis of the
 F decree can only be questioned before the same court that
   recorded the compromise and a fresh suit for setting
   aside a compromise decree is expressly barred under
   Order XX.Ill Rule 3-A. The expression "not lawful" used
   in Rule 3-A of Order XX.Ill also covers a decree based on
 G a fraudulent compromise hence, a challenge to a
   compromise decree on the ground that it was obtained
   by fraudulent means would also fall under the provisions
   of Rule 3-A of Order XX.Ill. [Para 6] [6-H; 7-A]
 H        1.2. However, a significant distinguishing feature in
              HORIL v. KESHAV & ANR.                     3

this case is that the compromise decree which is alleged      A
to be fraudulent and which is sought to be· declared as
nullity was passed not by a civil court but by a revenue
court in a suit under section 176 of the U.P. Zamindari
Abolition & Land Reforms Act, 1950. [Para 8] [9-8-C]
                                                              B
   Banwari Lal v. Chando Devi (1993) 1 SCC 581: 1992 (3)
Suppl. SCR 524 - distinguished.                 · ·

      2.1. Section 331 of the U.P. Zaniindari Abol.ition &
 Land Reforms Act, 1950 bars the jurisdiction of the civil
 court and provides that a suit under the Act can be C
_entertained by no court other than that the courts
 specified in Schedule II to the Act. A refere".'ce to
 Schedule II would show that the court of original
 jurisdiction for a suit under section 176 of the Act for
 division of a holding of a Bhumidhar is Assistant D
 Collector, First Class and the courts of First Appeal and
 Second Appeal are Commissioner and the Board of
 revenue respectively. Section 341 of the Act, of course,
 provides that unless otherwise expressly provided by or
 under the Act, the provisions of the Indian Court Fee Act, E
 1870, the Code of Civil Procedure, 1908 and the Limitation
 Act, 1963, including section 5 thereof would apply to the
 proceedings under the Act. [Para 9] [9-D-F]

    2.2. Though the provisions of the Code of Civil
Procedure have been made applicable to the proceedings F
under the U.P. Zamindari Abolition & Land Reforms Act,
1950 but that would not make the authorities specified
under Schedule II to the Act as 'court' under the Code and ·
those authorities shall continue to be "courts" of limited
and restricted jurisdiction. (Para 10] [9-F-G]               G

    2.3. Revenue courts are neither equipped nor
competent to effectively adjudicate on allegations of fraud
that has overtones of criminality and. the courts really
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    4       SUPREME COURT REPORTS               [2012] 3 S.C.R.


A skilled and experienced to try such issues are the courts
  constituted under the Code of Civil Procedure. [Para 11)
  [9-H; 10-A]

       3. It is also well settled that under section 9 of CPC,
  the civil court has inherent jurisdiction to try all types of
8
  civil disputes unless its jurisdiction is barred expressly
  or by necessary implication, by any statutory provision
  and conferred on any other tribunal or authority. There
  is nothing in Order XXlll Rule 3-A to bar the institution of
  a suit before the civil court even in regard to decrees or
C orders passed in suits ,and/or proceedings under
  different statutes before a court, tribunal or authority of
  limited and restricted jurisdiction. In the facts of the case,
  the provision of Order XXlll shall not act as a bar against
  the suit filed by the appellant. The order of the High Court
D is accordingly set aside. As a consequence, the suit will
   be~restored before the trial court. [Paras 12, 13) [10-8-0]

                         Case Law Reference:
        1992 (3) Suppl. SCR 524 distinguished           Para 7
E
        . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 776
    of 2012.

       From the Judgment & Order dated 11.11.2003 of the High
F Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
  8107 of 1988 and order dated 16.02.2005 in Civil Misc.
  (Review) Application No. 40253 of 2004 in Civil Misc. Writ
  Petition No. 8107 of 1988.
     Virag Gupta, Pallavi Sharma, (for Praveen Swarup) for the
G Appellant.
        Ujjal Singh, J.P. Singh, Parvinderjit Singh (for R.C.
    Kaushik) for the Respondents.
        ·rhe Judgment of the Court was delivered by
H
                     HORIL v. KESHAV & ANR.                           5

          AFTAB ALAM, J. 1. Leave granted.                                 A
           2. This appeal is directed against the judgment and order
     dated November 11, 2003 passed by the Allahabad High Court
     by which it allowed the writ petition filed by respondent nos. 1
     and 2, set aside the order passed by the District Judge,
                                                                           8
     affirming the order of the Munsif, and held that tile suit filed by
     the appellant was not maintainable being barred in terms of
     Order XXlll Rule 3-A of the Code of Civil Procedure.

           3. The appellant filed a suit (No. 43 of 1980) in the court
     of Munsif, Karwi (Banda) seeking a declaration that the decree        C
     passed by the Assistant Collector, Class-I, in a suit under
     sections 176, 178 and 182 of the U.P. Zamindari Abolition &
     Land Reforms Act was fraudulent, inoperative and not binding
     upon him. According to the appellant, the defendants had
     instituted the suit before the Assistant Collector in which his       D
     father namely Chunkai was made as one of the opposite party.
     In that suit, a compromise petition was filed on October 7, 1971
     with the fake signature of Chunkai and on that basis a
     compromise decree finally came to be passed on April 25,
     1979. It is the case of the appellant that no notice of the suit      E
     was ever served upon his father Chunkai. He never appeared
     in the proceeding and was not even aware of it. He did not sign
     any compromise petition and his alleged signature on the
     compromise petition dated October 7, 1971 was faked. He had
     died much earlier and was not even alive in 1979 when the             F
     decree was passed. The appellant, accordingly, sought a
     declaration that the decree dated April 25, 1979 passed by the
     Assistant Collector, Class-I, Karwi, may be cancelled or it may
     be declared as void ab initio, inoperative and not binding upon
     him.
                                                                           G
          4. The defendants (respondents 1 and 2 before this Court)
     filed a written statement in which they questioned the
     maintainability of the suit as well. It was contended on their
     behalf that as the suit related to agricultural lands it was beyond
     the jurisdiction and competence of the civil court and it could       H

'·
    6        SUPREME COURT REPORTS                [2012) 3 S.C.R.


A only be tried by the revenue authorities. The Munsif by his order
  dated October 1, 1985 upheld the defendants' objection and
  held that the suit was not maintainable before a civil court.
  Against the order passed by the Munsif, the appellant preferred
  an appeal (M.C.A.No.21 of 1985) which was allowed by the
B judgment and order dated April 14, 1987 passed by the
  Additional District Judge, Karwi, (Banda). The Additional
  District Judge rightly pointed out that the suit filed by the
  appellant was based on the allegation that the decree passed
  by the Assistant Collector was based on a fraudulent
C compromise petition and it did not involve any adjudication of
  rights or interests in the agricultural lands. Hence, the suit was
  maintainable before a civil court. It, accordingly, set aside the
  order passed by the Munsif and directed him to proceed with
  the suit in accordance with law.

D       5. When the matter came before the Munsif on remand,
  the defendants once again objected to the maintainability of
  the suit, this time raising the contention that it was barred under
  the provisions of Order XXlll Rule 3-A of the Code of Civil
  Procedure. The Munsif by his order dated January 7, 1988
E dismissed the objection and found and held that the suit was .
  maintainable. The defendants-respondents took the matter in
  revision (Civil Revision No. Nil of 1988) which was dismissed
  by the District Judge, Banda, by his order dated February 17,
  1988. Against the orders passed by the Munsif and the District
F Judge, the defendants preferred a writ petition before the High
  Court and the High Court, as noted above, allowed the writ
  petition holding that the suit was not maintainable. It is a brief
  order in which the High Court referred to the provisions of Order
  XXlll Rule 3-A, and relying upon a decision of the Allahabad
G High Court allowed the writ petition.
        6. It is true that a compromise forming the basis of the
    decree can only be questioned before the same court that
    recorded the comprise and a fresh suit for setting aside a
    compromise decree is expressly barred under Order XXlll Rule
H
     HORIL v. KESHAV & ANR. [AFTAB ALAM, J.]                     7


3-A. It is equally true the expression "not lawful" used in Rule 3-   A
A of Order XXlll also covers a decree based on a fraudulent
compromise hence, a challenge to a compromise decree on
the ground that it was obtained by fraudulent means would also
fall under the provisions of Rule 3-A of Order XXlll.
                                                                      B
      7. In Banwari Lal Vs. Chando Devi (1993) 1 SCC 581,
this Court examined the provisions of Order XXlll Rule 3-A in
some detail and in light of the amendments introduced in the
Code and in paragraph 7 of the judgment came to hold as
follows:
                                                                      c
    "7. By adding the proviso along with an explanation the
    purpose and the object of the amending Act appears. to
    be to compel the party challenging the compromise to
    question the same before the court which had recorded the
    compromise in question. That court was enjoined to decide         D
    the controversy whether the parties have arrived at an
    adjustment jn a lawful manner. The explanation made it
    clear that an agreement or a compromise which is void or
    voidable under the Indian Contract Act shall not be deemed
    to be lawful within the meaning of the said rule. Having          E
    introduced the proviso along with the explanation in Rule
    3 in order to avoid multiplicity of suit and prolonged
    litigation, a specific bar was prescribed by Rule 3-A in
    respect of institution of a separate suit for setting aside a
    decree on basis of a compromise saying:
                                                                      F
         "3-A. Bar to suit.- No suit shall lie to set aside a
    decree on the ground that the compromise on which the
    decree is based was not lawful."

It further held in paragraphs 13 and 14 as follows:-                  G
    "13. When the amending Act introduced a proviso along
    with an explanation to Rule 3 of Order 23 saying that where
    it is alleged by one party and denied by the other that an
    adjustment or satisfaction has been arrived at,"the Court         H
    8         SUPREME COURT REPORTS                    [2012] 3 S.C.R.


A         shall decide the question", the Court before which a
          petition of compromise is filed and which has recorded
          such compromise, has to decide the question whether an
          adjustment or satisfaction had been arrived at on basis of
          any lawful agreement. To make the enquiry in respect of
B         validity of the agreement or the compromise more
          comprehensive, the explanation to the proviso says that an
          agreement or compromise "which is void or voidable under
          the Indian Contract Act .... " shall not be deemed to be
          lawful within the meaning of the said Rule. In view of the
c         proviso read with the explanation, a Court which had
          entertained the petition of compromise has to examine
          whether the compromise was void or voidable under the
          Indian Contract Act. Even Rule 1(m) of Order 43 has been
          deleted under which an appeal was maintainable against
          an order recording a compromise. As such a party
D
          challenging a compromise can file a petition under proviso
          to Rule 3 of Order 23, or an appeal under Section 96(1)
          of the Code, in which he can now question the validity of
        . the compromise in view of Rule 1-A of Order 43 of the
          Code."
E
             14..................The court before which it is alleged by one
        .! of the parties to the alleged compromise that no such
         1
            compromise had been entered between the parties that
             court has to decide whether the agreement or compromise
F            in question was lawful and not void or voidable under the
          . Indian Contract Act. If the agreement or the compromise
           , itself is fraudulent then it shall be deemed to be void within
            the meaning of the explanation to the proviso to Rule 3 and
             as such not lawful. The learned Subordinate Judge was
G            perfectly justified in entertaining the application filed on
             behalf of the appellant and considering the question as to
             whether there had been a lawful agreement or
            'compromise on the basis of which the court could have
             recorded such agreement or compromise on February 27,
             1991. Having come to the conclusion on the material
H
                                                                               ·•'
     HORIL v. KESHAV & ANR. [AFTAB ALAM, J.]                     9


    produced that the compromise was not lawful within the            A
    meaning of Rule 3, there was no option left except to recall
    that order. n

      8. In light of the decision in Banwari Lal it would prima
facie appear that the High Court was right in holding that the        B
appellant's suit was hit by the provisions of Order XXlll Rule 3-
A and was not maintainable. But the significant distinguishing
feature in this case is that the compromise decree which is
alleged to be fraudulent and which is sought to be declared as
nullity was passed not by a civil court but by a revenue court in
a suit under section 176 of the U. P. Zamindari Abolition & Land      C
Reforms Act, 1950 (hereinafter the Act).

     9. Section 331 of the Act bars the jurisdiction of the civil
court and provides that a suit under the Act can be entertained
by no court other than that the courts specified in Schedule II       D
to the Act. A reference to Schedule II would show that the court
of original jurisdiction for a suit under section 176 of the Act
for division of a holding of a Bhumidhar is Assistant Collector,
First Class and the courts of First Appeal and Second Appeal
are Commissioner and the Board of revenue respectively.               E
Section 341 of the Act, of course, provides that unless otherwise
expressly provided by or under the Act, the provisions of the
Indian Court Fee Act, 1870, the Code Of Civil Procedure, 1908
and the Limitation Act, 1963, including section 5 thereof would
apply to the proceedings under the Act.                               F
      10. Though the provisions of the Code Of Civil Procedure
have been made applicable to the proceedings under the Act
but that would not make the authorities specified under
Schedule II to the Act as 'court' under the Code and those
authorities shall continue to be "courts" of limited and restricted   G
jurisdiction.
      11. We are of the view that Revenue courts are neither
equipped nor competent to effectively adjudicate on allegations
of fraud that has overtones of criminality and the courts really      H
    10       SUPREME COURT REPORTS                 [2012] 3 S.C.R.


A -.skilled and experienced to try such issues are the courts
  .constituted under the Code of Civil Procedure.

         12. It is also well settled that under section 9 of the Civil
   Procedure Code, the civil court has inherent jurisdiction to try
   all types of civil disputes unless its jurisdiction is barred
8
   expressly or by necessary implication, by any statutory provision
  .and conferred on any other tribunal or authority. We find nothing
   in Order XXlll Rule 3-A to bar the institution of a suit before the
   civil court even in regard to decrees or orders passed in suits
   and/or proceedings under different statutes before a court,
C tribunal or authority of limited and restricted jurisdiction.

       13. In our view in the facts of the case the provision of
  Order XXlll shall not act as a bar against the suit filed by the
  appellant. We, accordingly set aside the order of the High Court.
D As a consequence, the suit will be restored before the Munsif
  who is directed to accord it priority having regard to the fact
  that for the last 31 years it is stuck up on the issue of
  maintainability. The trial court should try to dispose of the suit
  without any delay, and in any case, not later than one year from
E the date of receipt/production of a copy of this order.

        14. In the result, the appeal is allowed but with no order
   as to costs.

   B.B.B.                                           Appeal allowed.