 Just good evening trends and as usual, when Mr. S.R.Somasekhar, the former district judge from Bangalore, the people on the WhatsApp as well as on the YouTube are too glad that the knowledge is being shared by one of the best resourceful persons on our platform. And today's topic is withdrawal and compromise. What is construed and laid down under order 23 of the CPC? On behalf of the team of Beyond Law CLC and Trichrom & Associates, we welcome sir and as usual the sessions of Mr. S.R.Somasekhar are doing the best. And number one on our platform continues to be of the session being taken by Mr. S.R.Somasekhar. And we are so proud and feel so happy that he keeps accepting our invite and we believe that it will continue to happen. So and we are as usual too happy that their son and his daughter-in-law always accede despite the holiday to agree to be remain at home so that the knowledge can be shared. So on behalf of the team, we are too happy for that. And we will request sir to share our obligations towards them. Over to you sir. Thank you Mr. Vidash Chetrak and good evening to all the participants. The title to order 23 first request of explanation. It is withdrawal and adjustment of suits. There is nothing like adjusting a suit. It is an adjustment between the parties which ultimately culminates in the disposal of the suit not by way of adjudication but by way of a settlement or compromise. It is an adjustment between the parties which is in the nature of an agreement. It should be a lawful agreement. It should be voluntary and in order 23 itself refers to it as compromise ultimately. Therefore though the title given to order 23 in CPC's withdrawal and adjustment I have chosen to put it as withdrawal and compromise only to enable the participants to know what exactly order 23 contains and promotes. It has two parts. One part dealing with withdrawal. The other part dealing with compromise. We should be very clear about this. 23 rule 1. Rule 1 capital A and rule 2. 23 rule 1. Rule 1 capital A and rule 2. They deal with withdrawal. Rule 3. 3 capital A 3 capital B deal with compromise. Rule 3. 3 capital A and 3 capital B deal with compromise. Rule 4 is applicable to both withdrawal and compromise and it says that order 23 does not apply to execution proceedings. So we can stop with rule 3 B. As most of you know the code of seal procedure was drastically amended in 1976. Act number 104 of 1976 which came into force on 1277. Probably everybody including me on this platform are all products of CPC which came which was amended by act number 104 of 1976. There is a reason to tell me about the significance of this amendment. The title as I see is withdrawal. Two kinds of withdrawal were contemplated before the amendment. Number one withdrawal simplicity or withdrawal without a rider. The second one was withdrawal with liberty to file a fresh suit in respect to the same subject matter. Withdrawal simplicity or withdrawal without a rider. Second withdrawal with liberty to file a fresh suit in respect to the same subject matter. So since two expressions were used for both the situations withdrawal and withdrawal with a rider in 1976 the new expression was used that withdrawal simplicity was replaced by abandonment. I always jokingly tell that the word withdrawal itself was abandoned rather it was withdrawn by the 1976 amendment. What we the word used now is abandonment. Abandonment of the suit. That abandonment of the suit of the claim is the same thing as withdrawal simplicity as it existed prior to 1976 amendment. Straight away I would take the audience to a judgment of honorable justice. Yes, Venkataramanya in reported in 1987 one SCC page 5 1987 one SCC page 5 party's name I am avoiding because it takes a good lot of time to cite the names of the parties. In pair of five of this judgment is the lordship has explained the distinction or difference that is brought out by this 1976 amendment in order 23 rule 1. What is lordship has stated is since the earlier rule provided for two kinds of withdrawals withdrawal simplicity and withdrawal with a rider that is with liberty while a suit. Two expressions were the same kind for different kinds of withdrawal was leading to some confusion. Therefore the parliament thought it fit to replace the word withdrawal by abandonment. This has been clarified by his lordship in this statement which the participants may read. Now we will take up those rules. As I said rule 1 rule 1A and rule 2 they deal with withdrawal first we will take up withdrawal and then we will go to compromise rule 1. At any time after the institution of a suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. See the marginal note to rule 1. The marginal note to rule 1 is withdrawal of suit or abandonment of a part of claim but in sub rule 1 of rule 1 we do not find the use of the word withdrawal at all. We find it abandonment at any time after the institution of a suit the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim. No permission of the court is required. Defendant can have no say in the matter. It is the plaintiff's right to abandon his suit. When a council files a memo saying that it does not press the suit it amounts to abandonment of the claim. No application is contemplated under order 23 rule 1 sub rule 1 for abandoning the claim. It is a matter of right. Court cannot ask the plaintiff as to why he is abandoning the claim. Court cannot ask the plaintiff why he is giving the peace claim why he is not pressing the suit. Defendant cannot oppose. Defendant cannot be given an opportunity by the plaintiff to file objections to this memo or application. Absolutely no written application is contemplated. Only for purposes of retard a written memo should be sufficient request in the not even requesting only to inform the court that the plaintiff is abandoning his claim. This abandonment can be in respect of all the defendants or a few of them. Similarly in respect of the whole claim or a part of the claim. Supposing the suit is for the summary of a sum of rupees 10 glass. The plaintiff may say I abandon my life of 2 lakhs and restrict it only to 8 lakhs. Court cannot question it. Defendant cannot question you. What is the right of the defendant I will tell you. Similarly suit is filed against a few one or two one or more defendants. Plaintiff may say I don't trust the suit against one of them or a few of them. What is its consequence I will tell you later. This is the right. Now even before this amendment as I said the word used was withdrawal. So the law lying down in the credit before the amendment was stood to this day. The earliest statement and the point is AER 1968 Supreme Court 111. AER 1968 Supreme Court 111. In paragraph 2 of this statement the Supreme Court has said the language of order 23 rule 1 sub rule 1 gives an unqualified right to a plaintiff to withdraw from a suit. And if no permission to file a fresh suit is sought under sub rule 2 of that rule. Plaintiff becomes liable for such cause as the court may award and becomes precluded from instituting any fresh suit in respect of that set foot plan under sub rule 3 of that rule. There is no provision in the court of civil procedure which requires the court to refuse permission to withdraw the suit in such circumstances and to compel the plaintiff to proceed with it. It is of course possible that different considerations may arise when a set off may have been claimed under order 8 or a counterclaim may have been filed. If permissible when the procedural law applicable to the proceedings found in the suit. Of course if there is a set off or counterclaim suit will certainly be abandoned with the draft. The defendant can proceed with this set off counterclaim. So the only right the defendant has is to request the courts to award pass to him. He having been dragged on to the court unnecessarily. No other right. He may say all right. It is his right or a problem. But I am entitled to cause the court to pay its discretion and pass. We have a fairly latest judgment also on the point that is 2018 volume 12 SCC 584. 2018 volume 12 SCC 584 par 18. Reading the part 23 rule 1 would go to show that the plaintiff has a right to file an application to abandon his crime. Of course it says it has right to file an application as I said. No application is also contemplated or part thereof at any time after its filing. However, if the permission to withdraw the suit whether full or part thereof is granted under rule 1 3. Then the plaintiff would be granted liberty to institute a fresh suit on terms as the court may deem fit and problem. Then para 23. In our considered opinion and the plaintiff files an application to order 23 rule 1 and press for permission to withdraw the suit whether in full or part he is always at liberty to do so. And in such case the defendant has no right to raise any objection to such prayer being made by the plaintiff except to ask for payment of the cards to him by the plaintiff as provided in sub rule 4. Para 24. The reason is that while making prayer to withdraw the suit under rule 1 sub rule 1 the plaintiff does not ask for any leave to file a fresh suit on the same subject matter. A mere withdrawal of the suit that is actually abandonment without asking for anything more can therefore be always permitted. In other words the defendant has no right to compel the plaintiff to prosecute the suit by opposing the withdrawal of suit sought by the plaintiff except to claim the cards for filing the suit against him. However when the plaintiff applies for withdrawing of the suit along with a prayer to grant him permission to file a fresh suit of the same subject matter as provided in sub rule 3 of rule 1 then in such event the defendant can object to such prayer where the plaintiff in such event it is for the court to decide as to whether the permission to seek withdrawing of the suit should be granted to the plaintiff and if so on what terms has provided in sub rule 3 of rule 1. Therefore the main part of sub rule 1 of rule 1 of para 23 makes it clear that it is the absolute right of the plaintiff to abandon his claim entire claim or a part of the claim against all the defendants or a few of them but law always has some exceptions that exception is found in the proviso provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of order 32 extent the other person referred to in order 32 is a person of unsolved mind neither the suit nor any part of the claim shall be abandoned without the leave of the court. So we should be very clear about this if the plaintiff is a major no permission of the court is required to abandon the claim or withdraw the suit but if the plaintiff is a minor or a person of unsolved mind then only permission of the court is required sub rule 2 an application for leave under the proviso to sub rule 1 you will have to carefully read sub rule 2 an application for leave under the proviso to sub rule 1 under the main part of sub rule 1 no application is contemplated it is a right of the plaintiff to abandon his claim to withdraw the suit but in case of a minor plaintiff or a plaintiff who is of unsolved mind then an application seeking leave of the court to abandon the claim is required an application for leave under the proviso to sub rule 1 shall be accompanied by an affidavit of the next friend and also if the minor or such other person is represented by a pleader by a certificate of the pleader to the effect that the abandonment proposed is in the opinion for the benefit of the minor or such other person and I take up compromise I will also draw your attention to the relevant provision in order 32 which says that in the case of a compromise the parties are minors then the leave of the court is required and a certificate of the pleader to the plaintiff or the defendant is represented by a pleader is also required that we do not find a similar provision in order 23 when it deals with compromise as far as withdrawal is concerned we have this a verbatim reproduction of the same thing in order 32 rule 7 when it comes to compromise where minors and persons of unsolved mind are there so now I repeat sub rule 1 rather sub rule 1 of rule 1 of order 23 contemplates withdrawal simplicity term which in the language of my CPC has amended in 1976 is only abandonment of the client now go to sub rule 3 it contemplates withdrawal with permission to file a fresh suit in respect to the same subject matter it is not same cause of action as many casually tell I may have permitted to file a fresh suit in respect to the same cause of action no the language used in CPC subject matter we will read sub rule 3 it has two parts where the court is satisfied that a suit must fail by reason of some formal defect now courts have held that this formal defect may be not issue in a statutory notice contemplated by CPC or some special enactment the frame of the suit being incorrect necessary part is being not implanted some defect a formal defect on account of it the suit will fail even if the matter goes for trial even if the point is succeeds on establishing his claim ultimately the suit has to be dismissed for around a formal defect therefore the plaintiff must be given an opportunity to withdraw the suit and file a fresh suit in respect to the same subject matter mark those words not in respect to the same cause of action so the first situation where the court can permit the trial with liberty to file a fresh suit in respect to the same subject matter is where there is a formal defect in the plaint which goes to the root of the matter and ultimately results in the failure of the suit that is dismissal of the suit or it is not and or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or a part of a client so both these conditions need not be satisfied simultaneously even if there is no formal defect if there are sufficient grounds for allowing the plaintiff to institute a fresh suit the court may do it this essentially depends upon the facts of each case some case law near about that there have been decisions to the effect if the distribution of the properties is not correct and necessary parties are not implanted so many amendments are required well by by amendment also the client can be cured if it ultimately is going to be totally cumbersome amending the entire client impeding so many people correcting the survey numbers boundaries and all that courts have taken the view that it is a sufficient role for allowing the plaintiff to institute a fresh suit in respect of the same subject matter now there was one question whether other sufficient grounds other sufficient grounds other sufficient grounds refer to in class b should be analogous to formal defect in other words should we read this expression sufficient ground a just term generated with formal defect karnataka high court has taken a view that other sufficient grounds need not be analogous to formal defect it could be anything other than formal defect i know that the decision the karnataka high court may not find force elsewhere in the country but i find a few of my friends from karnataka who have joined and even otherwise if this decision of the karnataka high court and first year they're just outside karnataka there is nothing wrong in knowing the legal position ilr 1968 maizu 1003 ilr 1968 maizu 1003 since it is a decision from ilr of maizu i find it necessary to mention the parties names also as far as this decision is concerned this is basappa tippanna basappa tippanna versus bheemappa so karnataka has taken a view that sufficient grounds need not be analogous to formal defect it need not be read a just term generated with the expression formal defect there could be other grounds also so now it is clear for simple withdrawal or abandonment no permission is required defendant cannot oppose court cannot rise on objection the only right of the defendant is to press for cause but under sub rule three if it is withdrawal with liberty to file a fresh suit in respect to the same subject matter not in respect to the same part of action plaintiff has to make out a case either there must be a formal defect or there will be sufficient grounds well of course what are those sufficient grounds it all depends upon the facts of the case the view which the particular presiding judge takes it all depends we can't give a exhaustive list of those sufficient grounds when an occasion arises lawyers will have to go through case or commentaries find out whether some sufficient grounds which the court consider for permitting withdrawal and if your case is somewhere here that you can cite it profitably then what is the consequence if a suit is abandoned sub rule four before that i want to tell you one thing now sub rule one contemplates withdrawal simplicity sub rule three contemplates withdrawal with liberty to file a fresh suit in respect to the same subject matter now when an application is filed by the plaintiff under sub rule three for permission to withdraw the suit with liberty to file a fresh suit in respect to the same subject matter experience has shown that the council for the defendant would submit that he has no objection for withdrawal but permission should not be given to institute a fresh suit in respect to the same subject matter turn out the high court has stated in view that the prayer cannot be split up either the application has to be totally rejected or totally allowed the court cannot say i'll permit the plaintiff to withdraw but i don't give permission to file a fresh suit in respect to the same subject matter if he does not want permission sub rule one mere abandonment under sub rule three when an application is made by the plaintiff seeking withdrawal with liberty to file a fresh suit in respect to the same subject matter the court finds that there is no formal defect there are no sufficient grounds it has to regret the application on the other hand if it finds that there is a formal defect absolutely it has to allow withdrawal with liberty to file a fresh suit even if there is no formal defect if there are sufficient grounds it has to allow the court cannot partly reject and sparkly allow the applications we have good number of decisions for the karnataka high court on this point as i said since there are participants from karnataka and of course they may be knowing it already but still i would like to bring to their notice those decisions with the karnataka high court at the point ilr 1974 karnataka 814 ilr 1974 karnataka 814 boota versus baburao boota versus baburao then ilr 1999 tarnataka 2105 ilr 1999 tarnataka 2105 k y siddharaju k y siddharaju versus general manager ilr 1991 tarnataka 3991 ilr 1991 tarnataka 3991 shiva kubara swami versus linga pa those of you who have a flare for english language will please read this statement it is by justice pk sam sundar of the karnataka high court is no more the very first sentence reads like this clearly the court has committed a false pass in passing the impugned order under which it permits the petitioner to withdraw the suit while refusing the prayer to renew the suit of the same pass of action so that's how the judgment feeds now what's the consequence of abandonment order 23 rule 1 sub rule 4 where the plaintiff abandons any suit or part of the climate of sub rule 1 or withdraws from a suit or a part of a claim without the permission referred to in sub rule 3 what is the consequence he shall be liable for such cause as the court may award and shall be precluded from instituting a any fresh suit in respect of sub subject matter or such part to be claim so when the plaintiff abandons the suit he cannot file a fresh suit if he withdraws the suit without the permission of the court he cannot file a fresh suit in respect to the same subject matter and as I said he is liable to pay tax sub rule 5 nothing in this rule shall be deemed to authorize the court to permit one of the several plaintiffs to abandon a suit or part of a claim under sub rule 1 or to withdraw under sub rule 3 any suit or part of a claim without the consent of the other plaintiffs but if there are more than one plaintiff then the consent of the other of the co-plaintiffs is required either for abandonment of the claim or for withdrawal of the suit with liberty to file a fresh suit in respect of the same subject matter then rule 1 age where a suit is withdrawn or abandoned by a plaintiff under rule 1 and a defendant applies to be transposed as a plaintiff under rule 10 of order 1 the court shall in considering such application have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants may be a partition suit where certainly one of the defendants has some thing to be decided as against the other defendants so it is a clear case where the court has to permit transposition of one of those defendants to the position of the plaintiff then rule 2 in any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation the same manner as if the first suit had not been instituted therefore advocates while seeking permission to withdraw the first suit with liberty to file a fresh suit will think twice before making such application the reason is if you file a second suit it should also be in time and the time runs from the date provided for the first suit you cannot say clause of action for the second suit arose when the court permitted withdraw a law it is not the correct position so therefore the second suit should be within the time provided by the limitation that for the first suit so lawyers will have to be extremely careful while making an application under order 23 rule 1 sub rule 3 seeking withdrawal with liberty to file a fresh suit in respect to the same subject matter because if you do not apply your mind at that stage to the question of limitation and the court grants permission merely because permission is given the fresh suit will not be in time I repeat you can't say clause of action for the second suit arose after the first suit was withdrawn court gave permission it is in time no a suit will not be in time because we think that it is in time a suit can be in time only when the suit is filed within the time mentioned in the last column of the schedule with the limitation act please be very clear about it so before making an application for withdrawal with liberty to file a fresh suit ensure yourself that the fresh suit will be within time so these are provisions which relate to withdrawal and the court now we will refer to provisions relating to compromise as I said rule 3 rule 3a and rule 3b they relate with compromise rule 3 where it is proved to the satisfaction before that a suit has been adjusted only here you get the word adjust therefore the title to order 23 is withdrawal and adjustment as I said I have deliberately changed the title for this platform as withdrawal and compromise because people usually say compromise the word adjustment is found in rule 3 where it is proved this proof is not by rhetoric evidence where it is proved to the satisfaction the court this proof the court gets by questioning both the parties well have entered into this compromise is it voluntary the court has to put searching questions to satisfy itself that the parties have really entered into the compromise here the court also has got an obligation merely because the suit gets disposed of the court should not say that I am satisfied that the compromise is voluntary court should use its innate common sense and question the parties whether there is really a compromise where it is proved the satisfaction the court that a suit has been adjusted only or in part by any lawful agreement or compromise this is extremely important it should be by way of a lawful agreement it has been entered into prior to waiting the application for compromise or a compromise in writing and side by the parties so both the parties will have to sign or where the defendant satisfies the plaintiff in respect to the whole or any part of the subject matter of the suit suit is for a theory of money the defendant pays the entire money or a part of the money suit is for specific performance in respect of two or more properties in respect of one property has executed a sale date after filing of the suit the court shall order such agreement compromise or satisfaction to be recorded and shall pass a decree in accordance with what the courts have held is this compromise is a requirement between the parties is the court is satisfied that the compromise is voluntary and lawful it accepts it it is the court putting its seal of approval to the agreement arrived at between the parties in technical language it is not imprimatur the court gives its imprimatur shall always in accordance with and shall pass a decree in accordance with so far as it relates to the parties to the suit this is extremely important this compromise can only be in respect of party in respect of who are parties to the suit a third person is not known by this compromise and whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit is an amendment brought by this act number 104 of 1976 prior to amendment any compromise under or 23 rule 3 could only be in respect of the subject matter of the suit may be experience of the courts and lawyers show that if some other property not included in the suit is also included there are chances of settlement by this amendment the parties are now permitted to include some property which was not earlier included in the plane here there is no need to amend the plane tender order 6 rule 17 to formally include that property because order 23 rule 3 itself provides that there can be a compromise in respect of a property which was not the subject matter of the suit earlier this reason is this let us say suit is filed in respect of four acres of land in a particular survey number parties enter into a compromise the defendant says all right you give two acres in the suit survey number to me I will give two acres in my property which is adjacent to your property on the eastern side so that we can have a compact black so now this compromise is permissible I mean possible or the defendant agrees for that compromise only when a portion of the suit property is devoted to him 20 p is also agreeable because he gets some property which belongs to the defendant but it was not the subject matter of the suit or some other property therefore may be based on experience in order to see that the parties arrive at a settlement and once for all gets the matter settled when cpc was amended in 1976 the code provided for inclusion of a property at the time of compromise which is not the subject matter of the suit no application under order 6 rule 17 cpc is required for amendment of the plane to include this property in the compromise petition that can be done then let us see the proviso 2 rule 3 provided that where it is alienated by one party and denied by the other that an adjustment or satisfaction has been arrived at the court shall decide the question but no adjournment shall be granted for the purpose of deciding the question under the court for reasons to be retarded things fit to grant such adjournment sometimes what happens is plenty for the defendant comes to the court with an application under order 23 rule 3 cpc saying that the matter is compromised the other side says no there is no compromise at all it is quite possible that he has also signed unwillingly he has signed not knowing the contents he has signed his signature might have been taken by force or by some kind of appreciation therefore or he might not therefore it is quite possible in such a situation one of the parties might represent to the court that he is not agreeable for a settlement that there is actually no settlement at all so one party says that we have compromised the other party says that there is no compromise what is it that the court should do the court shall decide the question of what whether there has been a compromise or not it cannot go into the rest of the case whose case is strong enough it has only to decide the limited question whether it whether there has been a compromise well it does it may not contemplate an inquiry or regarding a formal evidence well the court will have to put a serious questions to both the parties if by that nothing turns out maybe the parties will have to be put into the witness box ask them to take both what may also what cannot cross itself in what we have to put some searching questions to know the truth whether there has been a real compromise or not it also says no adjournment shall be granted so I will hold this inquiry tomorrow as far as possible that inquiry whether there has been a compromise or not has to be done on the same but if it cannot be done the court has to give reasons as to why it cannot be done on that day and then adjourn the matter then what is this agreement or compromise explanation an agreement or compromise which is wide or wideable under the Indian contract that shall not be deemed to be lawful within the meaning of this rule now section 10 of the Indian contract that says all agreements or contracts provided they are made by the free consent of parties competent to contract for a lawful consideration and for a lawful object and are not he expressly declared to be wide by the provisions of the contract that that is how section 10 of the contract that reads so it must be by free consent of the parties it should be for a lawful consideration that consent is also defined in section 30 free consent is also defined in 40 free consent means consent not obtained by coercion as defined under 15 then undo influence as defined under section 16 fraud has defined under section 17 misrepresentation has defined under 18 which take as defined under section 20 so all those factors the courts and the lawyers will have to keep in mind when they report compromise or when the compromise is accepted it has to be lawful and the added factor is it should be voluntary that is why it says free consent of parties here lawyers why a duty to the court experience has shown to overcome some laws some states would have imposed a ban on registration of some documents for some reason in the state of Karnataka for about six or seven years we had a law enforce Karnataka prevention of fragmentation and consolidation of holdings act it was later repealed the government thought the poor adulterates with lesser extent of land were forced to sell the land for some financial need the government said it would result in fragmentation and it is improper they gave a schedule also where clan this should be the extent dry land this should be the extent the extent in some areas is this and all that now what used to happen is because of that bar under that ad there could not have been a sale due to whether could not have been a sale did there could not have been registration so parties to overcome that they would file a suit declare that I am the owner of the suit schedule property defendant put them and say I know objection they have entered into a compromise in such a situation the court will have to be extremely careful in accepting such a compromise may draw your attention to section 58 of the evidence that it is contest no fat need be proved in any proceeding with the parties there to argue agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by the pleading provided that the court may its decision require the facts admitted to be proved otherwise than by such admissions they have almost a reproduction of this proviso to section 58 of the evidence ad in order 8 rule 5 order 8 rule 5 specific denial every allegation of fact in the client if not denied specifically or by necessary implication are stated to be not admitted in the pleading of the shall be taken to be admitted except against the person under disability provided that the court may in its decision require any fact so admitted to be proved otherwise than by such admission so in 1872 itself the flavors of the Indian evidence had thought that there could be such situations and the court should have discretion not to decree a suit merely because the defendant had admitted the client let me see which is the corresponding section in the Bhartasastra Dhaniyama 2023 which is yet to come into force it is section 53 in the Bhartasastra Dhaniyama 58 is the old section let me also read section 53 and see whether there is any change in the language section 53 of Bhartasastra Dhaniyama which is yet to be notified no fact needs to be proved in any proceeding same thing provided that the court may its decision require the facts admitted to be proved so there is absolutely no change as far as section 58 to be evidence that of 1872 is concerned in this regard well there are good number of situations they are both the lawyers you should be careful particularly in the advocates and they also owe a duty to the court and to the society and to their own clients in this regard now as all of you know Hindu marriage at prohibits bigger means a government official or an official of some bank or LIC or something has shown one yet as his wife and as the nominee to receive the benefits while in service he dies the nominee yet goes to the authorities concert represents herself to be legally wedded by that man claims benefit by then some other woman would have already gone and saying I have come to know that Mr. Yates has been shown as the nominee she is climbing herself to be the legally wedded by this man in fact she is not the legally wedded wife I am the legally wedded wife she is a second wife or a person a woman with whom my husband had some kind of a relationship absolutely she doesn't have any legal status or the mother of that man may go to the authorities concerned saying my son was never married at all some woman claiming to be his wife has some formal to take the money now the authorities concerned they say you bring a declaration from the court that you are legally wedded by that man what this woman gets the nominee does is she files a suit for a declaration she makes her children as defendants this woman yet files a that she is the legally wedded by that deceased who are the defendants in that suit her own children they have filed a written statement saying well it is true that excess the plaintiff it is our mother it is true that she is the legally wedded wife of so-and-so it is true that we are his legitimate children absolutely no objection particularly in this suit order 12 says when there is an admission the court can act on that admission in positive degree order 8 rule 5 says when there is no denial the court can proceed section 58 of the evidence that says admitted first need not be proved but the proviso to order 8 rule 5 the proviso to section 58 provide that the court may in its discretion call for proof of it order 12 the court is not bound to decree a suit on mere admission the court has to be careful whether that admission is voluntary or full whether there is a clear admission and unequal admission now this is a case where the court is perfectly justified in invoking its power under the proviso to section 58 of the evidence that and similar provision proviso under order 8 rule 5 as I said the court cannot cross examine court has to put the plaintiff to witness parts you claim to be legally wedded by who fits please let me know the name of your mother in law or the father in law your husband's brother when did we get married is there any proof for that at one stage she may at least say well my mother in law is alive she is a class one year can there be a declaration that she is the only legal heir or her children are the legal heir well despite such exercise the court may not it may not be possible for the court to elicit all truth no but the court is required to do this lawyer should not find fault with such a court or a presiding officer who is true to his job who knows the law and serious about it well when I am giving consent why it is for the court to do all that no court has that duty to satisfy itself that there is a valid compromise and it is not a case where there is pollution here itself please read section 44 of the evidence act the corresponding provision in this bhartiya sastra in yama is 38 section 44 for the indian evidence act now we have a group of sections convincing from section 40 and ending with 44 in the evidence act under the head judgments of courts of justice when relevant section 40 says well if there is already a judgment in an earlier suit because of the principles of restorative attire a fresh suit is barred if a trial has already taken place in a criminal case either acquitted in the accused or committed in the accused a second prosecution is prohibited both under article 20 of the constitution and section 300 of CRPC attrifies acquit or convict 41 says judgments given by provided courts matrimonial courts insolvency courts and virality courts are judgments in rem what is declared there is the inclusive proof 42 and 43 are not relevant for our discussion 44 any party to a suit or other proceeding may show that any judgment or order or decree which is relevant into 40 41 or 42 and it has been proved by the adverse party was delivered by a court not competent to deliver it i will come to that not competent to deliver it a little later or is obtained by fraud or by pollution therefore the court have also got a duty to see before accepting a compromise whether there is really any fraud played on the court or on the opponent and whether there has been pollution in that data many times it is done to overcome the provisions of the registration act to overcome payment of stamp duty or a clear case of pollution property belonging to someone there is nothing wrong if the court insists on the plaintiff and the parties and the defendants to produce documents to show the title plaintiff simply files a suit declare that i have perfected my title to the suit property by adverse possession of course such a suit is perfectly maintainable now you know the law declared by the supreme court defendants says i have no objection what if the property belongs to it is true that this compromise does not bind a third party but even then at that stage it will go and applies its mind to and examines whether it is a case of pollution or not further litigation can be prevented innocent persons who are not parties to this litigation are in no way herald otherwise they will have to file it is true that this decree does not bind them but yet you see why he should be forced to litigate before the court so this is a duty which the lawyers over to the society lawyers over to the court this is a duty which the judge was to himself to protect the dignity of the court to protect innocent persons then rule 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 so there cannot be a suit to set aside a decree a compromise decree on the ground that it is not lawful what is the remedy it takes a little time for me to explain that i will come to it a little later let me complete the statutory projects the suit does not lie of course law has grown in this regard it requires some detailed explanation i will do it with reference to yes law then rule 3 b no agreement or compromise to be entered in a representative without the leave of the court no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings and any such agreement or compromise entered into without the leave of the court so recorded shall be void so in the case of a representative suit permission of the court is required for entering into a compromise before granting such leave the court shall give notice in such manner as it may be fit to such persons as may appear to it to be interested in such suit they may not be parties to the suit but the court thinks well several other persons are going to be affected by this compromise let me also hear them the court will have to issue notice to them what is this representative suit not just order one rule 8 explanation in this rule representative suit means a suit under section 91 or 92 91 public nuisance 92 trust matters 91 public police 92 public charities a suit under rule 8 of order a suit in which the manager for undivided hindu family is used or is sued as represented in the other members of the family that is the karta of the giant hindu family any other suit in which the decree passed may by virtue of the provisions of the court or if any other law for the time being imposed bind any person who is not named as a party to this suit these are all representing suits in such situations the courts will have to be extremely careful in permitting compromise and an application is contemplated there here itself let me refer to order 32 rules 7 I already told you in the case of withdrawal where the plaintiff is a minor this rule sub rule 2 of rule 1 provides that there should be a fit of it of the next friend to the effect that the compromise is for the benefit of the minor and the minor is represented by a pleader a certificate as far as compromise is concerned that is not contained in order 23 it is contained in order 32 rule 7 please go to order 32 rule 7 sub rule 1 no next friend or guardian for the suit shall without the leave of the court expressly regarded in the proceedings enter into an agreement or compromise on behalf of the minor with reference to the suit in which he adds as next friend or guardian sub rule 1 a an application for leave under sub rule 1 shall be accompanied by an affidavit of the next friend or the guardian for the suit as the case may be and also the minor is expressed is represented by a pleader by the certificate of the pleader to the effort that the agreement or compromise proposed is in the opinion for the benefit of the minor it is in fact almost a reproduction of sub rule 2 of rule 1 of order 23 provided that the opinion so express whether the affidavit or the certificate shall not be quote from examining whether the agreement or compromise proposed is for the benefit of the minor despite the next friend or the guardian filing an affidavit that it is in the interest of the minor it is what benefited the minor despite the pleader given that certificate what he still has the court still has that power to examine whether the agreement or compromise is really for the benefit of the minor any such agreement or compromise entered into without the leave the court so retarded shall be voidable against all parties other than the minor since order 32 deals with the suits by or against minors and persons of unsold mate this rule 7 regarding permission of the court certificate of pleader all that is mentioned as far as withdrawal we find a similar rule in order 23 rule 1 now there are a few other things not directly found in the statute mostly doubled by case law and I would take it with reference to the state's laws now we have seen under order 23 rule 3 there can be a compromise in respect of a part of the claim as in respect of a few of the defendants only but here lawyers and judges will have to be careful particularly in partition suits if some of the parties only enter into a compromise well the court may mention in the order sheet well the parties have come up with this compromise compromise is read over to them they agree that there is a compromise my advice is not to pass any order from the compromise petition because if it is a partition suit the other defendants the other parties also have a right in the property supposing plaintiff and defendant enter into a compromise and saying that item number one shall go to defendant or plaintiff if the other items are all worthless they are not valuable properties the other defendants are going to be affected therefore it is not proper to act on such a to pass an order that compromise immediately and pass a decree in respect of the parties who have entered into a compromise all this is not available in the statute all this you will gain from your experiences lawyers and as judicial officers what would be this effect but there may be a case where there could be a compromise in respect of a part of the claim or in respect of a few of the properties in respect of a few of the defendants because it may not ultimately affect the other defendants well it all depends upon a given case now therefore this partial compromise is permitted well the statute itself is clear you may also refer to 1924 volume 1 SCC 567 1974 volume 1 SCC 567 or 23 rule 3 para 59 of this segment or 23 rule 3 not only permits a partial compromise and adjustment of a suit by a lawful agreement but further gives a mandate to report the rhetoric and pass a decree in terms such compromise and adjustment supposing the court is convinced well there can be a compromise in respect of a few of the parties in respect of some of the parties it is lawful the other defendants are not going to be affected the other parties are not going to be affected it will pass a compromise decree in respect of the parties who have not compromised in respect of properties about which there is no compromise the court has to proceed for trial there will be two degrees in such a situation one a degree by consent another a degree after contest so there is nothing wrong in passing two degrees in this regard we may refer to 1970 volume 3 SCC 124 1970 volume 3 SCC 124 on the other hand rule 3 of order 23 clearly initiates a decree being passed in respect of a part of the subject matter and rule 6 of order 12 permits the passage of a judgment at any state without waiting for determination of other questions thus it is clear that it is same suit that it will be more than one degree passed at different stages so as I said 183 by consent and another after contest this is another thing which we are required which you are required to remember then there is one other aspect which has been to order 23 rule 3A before that there is a small in which I want to verify here whether a compromise decree requires registration is another question which has been bothering the legal fraternity the whole problem with some of us is we presume the legal position and we assert that that is the correct position and we think that our presumptions are irreverable they are in fact conclusive proof many times our presumptions are reverted by the statute itself first let us be very clear about this fundamental let us not go by some straight decisions here and there or in some case some new state and some presiding officer of some court where you have practiced or some advocate making some submission report accepting it let us not go by that let us go by the statute law first to my knowledge we have only two enactments which say which of those documents which require registration one of those enactments has as all of you know is the registration act the other enactment is the transfer of property act in fact you will be surprised to know that the registration act there is no specific provision which says that a sale deed in respect of a property work more than rupees 100 requires registration it is contained in the transfer of property act by a process of interpretation of 71 year registration act we can say that a sale deed in respect of a property work more than rupees 100 requires registration because it declares a title it creates title but specifically it is thought by the transfer of property act so whenever lawyers and judges have a doubt whether a particular document requires registration let us not presume anything let us not trust our memory let us not proceed on the basis that our presumption is irreverable our presumption is revertable it is reverted by the statutes themselves which are those statutes the registration act and the transfer of property act obviously compromise does not find a place in the transfer of property act we will leave it for for the present we will go to the registration act 17 subsection 1 or the registration act refers to a list of documents which require compulsory registration as lawyers when you are required to give opinion to your clients or file a suit or make a submission in the court if you are in doubt whether this document requires registration or something please if it is a document or a transaction covered by the tp act go to the tp act otherwise refer to the registration act of course in respect of something there is that overlap 17 subsection 1 of the registration act refers to five documents which require compulsory registration this compromise decree does not find a place in any one of those classes a to e i don't read a to e because it deals with altogether different that's better the matter then subsection 1a i had had why say about subsection 1a obtained times on this platform and i don't want to repeat it i will leave it there subsection 2 is an exception to 17 1 b and 17 c whatever might be stated in 17 1 b and c in respect of documents mentioned in section 17 2 registration is not compulsory then 17 subsection 3 also speeds up a document which requires registration there also we don't get this stop provides decree 18 gives a list of documents of which registration is optional law does not make it mandatory if parties wanted to get it registered well they can get it registered now what about this stop provides 17 1 does not make it mandatory because it is not covered by it at all 17 2 let us have a look at 17 2 nothing in classes b and cf subsection 1 applies to what is this class b of 17 1 other non-testamentary instruments which purport or operate to create declare sign limit extinguish whether in present or in future generate title or interest where rested or continued enter the value of 100 rupees and upwards to our removal property classy non-testamentary instruments which acknowledge the receipt so nothing in classes b and c applies to any composition did composition did is not compromise as to any instrument relating to shares in a giant stock company subclass 3 any debenture issued by research company or any endorsement upon a transfer of any debenture issued by research company file in a document other than the document specified in subsection 1 a not itself create in clearing the signing limiting or extinguishing any right title or interest or the value of 100 rupees and upwards to our in immovable property but clearly creating a right to obtain another document it is not a matter of sale six is important please read it very carefully any degree or order of a court so a degree or an order of a court does not require registration there is something in the brackets except a degree or order expressed to be made on a compromise let us not stop there and comprising immovable property other than that which is the subject matter of the suit or proceeding so a degree or an order of a court does not require registration all compromise decrease do not require registration but if a compromise degree is in respect of an immovable property which is not the subject matter of the suit then it requires registration that has been very clear about this why because we have seen order 23 rule 3 provides for a compromise in respect of a property other than the subject matter of the suit also I repeatedly said no application for amendment of the client under order 6 rule 17 to include that property but in the compromise petition that can be shown so the court accepts the compromise and passes a degree in respect of a property which is not the subject matter of the suit then that compromise degree requires registration compromise decrease all compromise decrease not require registration all decrease do not require registration it is only a compromise degree in respect of a property which is not the subject matter of the suit that requires registration then the case law in this regard is in addition to what is stated here supposing under the compromise a party for the first time gets a right in an immovable property or the value of more than rupees 100 he did not have a pre-existing right he got that right only for the first time now let us take a partition suit or a suit for declaration of title when they enter into compromise the defendant gives up his climb in respect of his own property to some extent in there the plaintiff it may be a suit for partition where that property is admittedly the self-application of one of the defendants because of this compromise for the first time the plaintiff gets a right title in respect of a property over which he had no pre-existing right by this compromise for the first time he gets a right so the supreme court has held that in such an event when for the first time the parties get a right under a compromise in respect of which they have no pre-existing right such a degree requires registration we have this 1995 5 SCC 709 1995 5 SCC 709 boob singh versus rom singh boob singh versus rom singh a very detailed discussion is made with regards to registration of a compromise degree and in para 18 the legal position is summarized before that I would like to read para 17 also it would therefore be the duty of the court to examine in ill case whether the parties are pre-existing right to the immobile property or whether under the order of degree of the court one party have a right title or interest there in a greed or suffer to extinguish the same and created right title or interest in present in immobile property or the value of rupees 100 or repose in fairer the other party for the first time either by compromise or pretended consent if later by the position the document is compulsively registerable para 18 the legal position can on the basis of the opposing discussion we summarize as below compromise degree is bona fide in the sense that the compromise is not a device to obviate payment of stamp duty and frustrated the law relating registration would not require registration in a converse situation it would require registration in a compromise degree what we create for the first time right title or interest in immobile property the value of rupees 100 or repose then it would require registration of course on spats this decision was distinguished in a someday versus ratira 2006 10 scc 78 8 of course legal position is not changed on facts they said this would will not apply 2006 10 scc 78 8 then we have a latest decision 2021 7 scc 4 4 6 2021 7 scc 4 6 this book sing is followed some other decisions which were rendered in the meantime have also been followed in this decision so a compromise degree that requires which is finished if it is in respect of a property which was not the subject matter of the suit or if for the first time the parties get a right to the property and they did not ever quit existing right now back to this or 23 rule 3a which bars a suit this is extremely important because it is purely based on the case law or 23 rule 3a no suit shall lie to set aside a degree on the ground that the compromise on which the degree is based was not lawful maybe the parliament found that frivolous suits were filed even though the parties had voluntarily entered into a compromise and therefore the parliament thought it best to create a bar when cpc was amended in 1976 now there cannot be a suit to set aside the degree on the ground that the compromise on which the degree is based was not lawful this is this 1976 amendment prior to this amendment there is a provision in order 43 rule 1 m those lawyers practiced on the the appellate course would be aware of for 43 rule 1 which provides for appeal against certain orders order 43 rule 1 m is omitted by the 1976 amendment 43 rule 1 m is omitted by the 1976 amendment prior to 1976 order 43 rule 1 m provided for an appeal against an order in karnataka we call it as miscellaneous appeal i do not know how it is categorized or classified in other states before deletion 43 rule 1 m provided for an appeal against an order recording the refuse into retarded compromise now one party says that there is a compromise the other party says that there is no compromise the court is satisfied that there is a compromise and passes it order p3 or the court says that there is no compromise and therefore refuses to retarded compromise on the order against the order passed by the court either adopting a compromise or refusing to accept a compromise a regular appeal to that like an appeal under order 43 rule 1 m lay now that has been deleted by this 1976 amendment in its place something else is provided in order 43 rule 1 capital a sub rule 2 order 43 rule 1 capital a right to challenge non-appealable orders in appeal against decrease sub rule 1 i am omitting because it is not necessary for today's discussion i am reading sub rule 2 in an appeal against a decree passed in a suit after recording a compromise or refusing to retarded compromise it shall be open to the appalling to contest the decree on the ground that the compromise should or should not have been retarded please read this provision carefully in the light of our 43 rule 1 m which is deleted our 43 rule 1 m provided for an appeal against an order refusing to accept a compromise or retarded a compromise it was an appeal it was not a decree there it is that order and appeal put by file now that is deleted this 43 rule 1 a 2 it it does not take the place of order 43 rule 1 m it does not provide for an appeal against an order refusing to retarded compromise or recording a compromise what it says is the court refuses to say no there is no compromise it proceeds to decide the state on merits against the decree given on merits on appeal lies under section 96 right with order 41 in that appeal which is filed under section 96 right with order 41 rule 1 the appellant may say that it was already a compromise the court did not accept the compromise it was a valid compromise it was a voluntary compromise a lawful compromise yet the court did not accept the compromise now it has proceeded to decide the suit on merits and therefore it can urge that ground there it is not an appeal under order 43 rule 1 it cannot be filed as a miscellaneous appeal a regular appeal under section 96 right with order 41 rule 1 one of the grounds that can be urged is that regular appeal is there had already been a compromise the court though there was a compromise it was voluntary lawful everything valid the court did not accept the compromise and proceed to decree the suit here section 96 3 cpc also assumes relevance 96 3 cpc 96 says it is here for our information what is provided by 96 is an appeal against a decree not against a judgment though usually we say that is an appeal against a judgment and decree passed by the trial court in law it is an appeal against a decree only 96 sub rule 3 96 3 no 96 sub section 3 no appeal shall lie from a decree passed by the court with the consent of parties well i have my own view as to what a consent decree and a compromise decree is but my view is not the view that the supreme court has stated and therefore i can't view by view the supreme court has said well the compromise decree would also be a consent decree in terms of section 96 3 cpc and therefore 96 3 cpc is a bar to challenge a compromise by way of an appeal all right we'll accept the tribute at the supreme court now what's the position rule 3 a for 23 bars a suit for filing a compromise order 43 rule 1 m has been deleted to file an appeal against an order accepting regarding a compromise or refusing to accept a compromise 96 3 bar cpc bars a regular appeal challenging a consent decree suit is bar miscellaneous appeal is bar regular appeal is bar if a regular appeal is filed against that final judgment one of the grounds could be compromise should have been accepted and the decree could have been passed on compromise therefore the court started fit to meet such a situation we have that 151 cpc 151 cpc could be invoked to file an application in the very court where the compromise petition was filed and the compromise was accepted challenging that compromise on the ground that was not lawful this is purely judgment law so the remedy is enter that we have some three of course there are number of judgments with the karnataka report i am not dealing with them because some two officers judicial officers of karnataka are on the line and they are quite competent and they are aware of those decisions and they themselves tell me as to what those decisions are i will straight away go to the decisions of the supreme court of the point because we have number of participants outside karnataka 1993 one scc 581 1993 one scc 581 bhanwari law versus chandodevi bhanwari law versus chandodevi not eight 10 earlier order 43 rule 1 m under order 43 rule 1 m an appeal was maintainable against an order under rule 3 of order 23 recording or refusing to record an agreement compromise or satisfaction but by the amending act of course said the clause has been deleted the result whereoff is that now no appeal is maintainable against an order recording or refusing to record an agreement or compromise in the rule 3 being conscious that the right of appeal against the order received card in the compromise or refusing to record a compromise was being taken away a new rule 1a has been added to order 43 which i have on the paper then par 96 par 9 section 96 3 says that no appeal shall lie from a d3 passport report with the consent of the parties rule 1a 2 has been introduced saying that a d3 party has sued after recording a compromise it shall be opened to the appellant to contest the degree of the ground that the compromise should have been recorded when section 96 3 bars an appeal against a d3 pass to the consent of the parties it implies that such degree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties one such remedy available while filing the appeal under order 43 rule 1m if the order recording the compromise was set aside there was no necessity or occasion to file an appeal against the degree similarly a suit used to be filed for setting aside such a degree on the ground that the degree is based on an invalid and illegal compromise not binding on the plaintiff or the defendant but after the amendments which have been introduced needed an appeal against the order recording a compromise nor remedy by way of filing a suit it's available in cases covered by rule 3a of order 3 as such a right has been given under rule 1a 2 of order 43 to a party who challenges the retorting of the compromise to question the validity thereof while preferring an appeal against the degree 96 3 shall not be a 96 3 shall not be a part to such an appeal because 96 3 is applicable to cases where the factum of compromise or agreement is not in dispute because it is like I said when the compromise itself is in dispute 96 3 would not be a part then we have this 2006 2005 SCC 566 2006 5 SCC 566 Pushpa Devi Bhadrak versus Rajendra Singh 2006 5 SCC 566 Pushpa Devi Bhadrak versus Rajendra Singh please read the judgment it's a judgment of justice R. R. Ravindran the legal position is clarified well as I have already as I have always said in one of the paras his lordship justice Ravindran would summarize the entire legal position so it can just directly go to the para para 17 the judgment the position that emerges through the amended provisions of part of 23 can be summed up thus number one no appeal is maintainable against a consent decree having regard to this specific bar contained in 96 3 no appeal is maintainable against the order decode record in the compromise or refuse to record a compromise in your the deletion of class M of rule 1 of part of 43 no independent suit can be applied for setting aside a compromise decree on the ground that the compromise was not lawful in your the bar contained in rule 3 a a consent decree operates as an estable and is valid and pointing unless it is set aside by the court which passed by the consent decree by an order on an application therefore the only remedy availability of party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and made a decree in terms of it and established that there was no compromise in that event the court which recorded the compromise will itself consider and decide the question as to whether there is a valid compromise or not this is so because a consent decree because a consent decree is nothing but a contract between the parties superimposed with the seal of approval of the court the validity of a consent decree depends solely on the validity of the agreement or compromise on which it is made well the facts of this case it is stated and then the other judgment is 2014 15 SCC 471 2014 15 SCC 471 Rajana versus Venkata Swami Rajana versus Venkata Swami the next is 2020 volume 6 SCC 629 2020 volume 6 SCC 629 Threloti not Singh versus Anirudh Singh Threloti not Singh versus Anirudh Singh well some clarification is required in respect of this judgment if we just simply read the head note of this decision or some lines here and there one is really justified in getting an impression that even a stranger to the compromise a person was not a party to the suit even he is barred from filing their suit saying that the compromise is not binding on him this decision appears to give an indication that the bar under order 23 rule 3 a is not confined only to the parties to the compromise even a stranger is bound by it the Karnataka High Court had an occasion to clarify this judgment what appears is in this Threloti not Singh the person who filed this suit was climbing under a person who was a party to the earlier suit he did not climb any independent title it was in those circumstances the honorable supreme court took the view that even a stranger is prevented from filing a suit under order 23 rule 3 a because on first principles a compromise can bind only the parties to the compromise obviously were parties to the suit it cannot bind third persons Threloti not Singh private phase a appears to indicate a slightly different view if we carefully read the facts of the case and application given by the Karnataka High Court in that regard of course I am aware that the Karnataka High Court decision can only pursue it other course but if it can throw some light on us and pursued us why not we accept it the decision of the Karnataka High Court is an ILR 2021 Karnataka 338 ILR 2021 Karnataka 338 Srimati Sushila versus Vijay Kumar Srimati Sushila versus Vijay Kumar well these decisions in this Banwari Ilal Pushpa Delhi have all been subsequently referred to in 2021 9 SCC 114 2021 9 SCC 114 it will also refer to 2022 5 SCC 736 2022 5 SCC 736 Shri Surya developers and promoters Shri Surya developers and promoters versus N. Shailesh and others and these are some important decisions now when the matters are referred to Lokathalak under the Legal Service Authorities Act even the Lokathalak is bound by the fundamental principles contained in order 23 rule 3 Lokathalak should also be satisfied that the compromise is voluntary and lawful the Legal Service Authorities Act requires a reference to Lokathalak on a memo or application made by both the parties or if only one of them seats are referenced the other party has to be heard or the court thinks that it is a fit case for settlement through Lokathalak the court before making the reference has to hear both the parties so before Lokathalak also all these requirements are to be followed we have 2006 8 SCC 364 2006 8 SCC 364 2008 2 SCC 660 2008 2 SCC 660 so again a judgment of justice R. V. Ravindran in 2009 2 SCC 198 2009 2 SCC 6198 and well I have some thinking in this redock I am not battered by any decision I will leave it to the audience to investigate the matter whether you accept the proposition that I can also or not I will leave it to your wisdom I am not imposing my view on that I have just given a thought to this you also give a thought to this I took you through the provisions of section 44 of the Evidence Act corresponding provision as I said is 38 of Bharatiya Sat Sri Amma 44 of the Evidence Act any party to suit or other proceeding may show that any judgment or order or decree which is relevant under 40 41 or 42 and which has been proved by the other party by the adverse party was delivered by a court not complete into delivery or was obtained by fraud or collusion of course a reading of section 44 might indicate that if a judgment or decree or order is passed after contest by a court and if that court had no competence to deal with that matter that it really does not bind the parties and they could not operate as restricting data under section 40 the section 40 and section 11 cps that appears to be clear meaning if it is a decree obtained by fraud or by collusion or if it is passed by a court not competent to pass it then that would not bite I am of the view I am telling accordingly it is my personal view I am not imposing my view on you we can examine the legal position you are free to take a different view also I am of the view that even in the case of a compromise decree passed by a court which had no jurisdiction at all it would not bind the parties we have the family courts act the section 8 and the family courts act says if there is a family court established in that area the regular civil court does not have jurisdiction to decide matters tower by section 7 the family courts act let us take a petition for divorce by mutual consent under section 13 b or the Hindu marriage act we have a corresponding provision into the special marriage act also I have provided the provision now there is a family court in a particular area and not knowing the establishment or existence of the family court or for whatever reason wrong legal advice or whatever it is parties approach a regular civil court file a petition for mutual consent under section 13 b or the Hindu marriage act the court is satisfied that the parties are not living together for a period of one year there are no chances of they living together any longer they have decided that their marriage be dissolved by consent court passes a decree by mutual consent under section 13 b is all in the marriage I am of the view that though it is a compromise decree since it is passed by a court which had no jurisdiction at all because it was the family court which had to pass it it may be open to one of the parties to say this decree cannot be considered at all I am only just canvassing it as a proposition I am not battered by any decision as of now but you may just give a thinking to that effect otherwise 44 would say 4 which is not competent of course slightly I am digressing for the benefit of the junior advocates here and for refreshing the memory of the seniors and to refresh my own memory basic things we have got three jurisdictions territorial jurisdiction tower by section 16 to 20 cpc pecuniary jurisdiction covered by the local civil courts acts then we have this inherent jurisdiction or jurisdiction of the subject matter of the suit it is not inherent powers under 151 cpc if the court has no inherent jurisdiction to deal with the matter at all in a degree passed by such a court which had no inherent jurisdiction or jurisdiction for the subject matter is a nullity it is void it is non-est in law the parties can ignore it it is called forum non-judice c o r a forum non-judice n o n j u d i c law dictionary gives the meaning of the word forum non-judice is a judgment in the absence of a judge it is true it is a judge who has given the judgment the effect is as if he is a non-judge a person who is not a judge who has given that judgment though he has been appointed as a judge he had no jurisdiction to decide the matter it is as if a layman has given that judgment it can be clearly ignored it need not be challenged by way of an appeal it can be ignored we know this principle under the contract that a void transaction can be ignored it need not be set aside it need not be cancelled one can ignore it it is totally void as and when it is put into action i can attack it it is not a collateral attack so similarly if it is a void degree forum non-judice passed by a court which had no initial inherent jurisdiction or jurisdiction over the subject matters it can be totally ignored no appeal is required to be filed it need not be attacked even in execution proceedings it can be challenged it is an elite it is called forum non-judice we have a very beautiful judgment of the supreme court on this point in a year 1954 supreme court 340 i know that i am slightly deviating but worth deviating a year 1954 supreme court 340 and there are number of judgments following it the latest in the series is 2019 3 sec 594 2019 3 sec 594 if you carefully read the provisions of section 21 cpc it would reveal that objection regarding territorial or peculary jurisdiction will have to be raised by the defendant at the earliest if not rise he cannot be permitted to rise it to the appellate what does it mean it is only a technical objection it doesn't go to the root of the matter but objection regarding competency of the court inherent jurisdiction it goes to the root of the matter and if a judgment is given by a court which was not competent competence not in the competence of the judge not his intellectual competence competence means the authority to decide that matter well if it goes to the root of the matter it is a wide degree called forum non-judice so i am of the view unless a decision contrary to what i have said is either noticed by me or one of you bring it to my notice or a later point of time a judgment comes to that effect even a compromise decree passed by a court which has no initial jurisdiction will be a wide degree and section 44 of the evidence that would clearly come into play this is this is all what i wanted to speak to you i will have deliberately avoided some decisions with anata high court because two officers whom i see here they themselves know it they can even tell me what those decisions are i know their competence and every time they join on this platform i i send a link to them both of them are very prompt in joining i don't want to mention their names and cause embarrassment to them i know them they are really quite good my compliments to them wishing all the best to both of them and all the other participants are so any questions i am prepared yes this is one is if they are 10 plaintiffs can 10 plaintiffs withdraw their part of play this is they can they can now what is the position of law regarding appeal or vision against the order for abandonment and compromise as i said there is no appeal against abandonment at all as far as compromise is concerned in view of order 43 rule 1 being deleted even otherwise there is no appeal suit is also a bar if a regular appeal is filed there it can be contended that though there was a compromise the court did not act on the compromise it has proceeded to decide the case on merits that can be one of the grounds that can be urged in the appeal under section 96 read with order 41 the only remedy now is to make an application of section 151 cbc before the very court which has retarded the compromise and satisfied the court that there was no valid compromise or valid voluntary compromise the kind of family settlement agreement between the plaintiff in a declaration suit in which one plaintiff has relinquished his share in the subject property we submitted to the court under order 23 rule 3 in order to delete the name of such plaintiffs from the yes that could be done attain the court should be satisfied it is a voluntary relinquishment please elaborate on order 23 rule 3 b rule 3 b see it contemplates compromise in respect of a representative suit no agreement or compromise in a representative suit should be entered into without the leave of the court expressly retarded in the proceedings and any such agreement or compromise entered into without the leave of the court so retarded should be void see what happens in a representative suit is it is not just the parties to the suit other persons public at large are also affected by that see a representative suit and to be filed under order 1 rule 8 by one or two persons seeking leave of the court to file it in a representative capacity it is quite possible they pollute the defendants or enter into some kind of a compromise and the very fact that permission is given to them to file a suit in a representative capacity indicate that there is some uh task for others also therefore the law in its wisdom has said if in a compromise if in the case of a representative suit there is a compromise please see that public notice is given before accepting the compromise otherwise industries should be done the parties to the uh the parties to the uh compromise uh well there could be a kind of collusion which might affect third parties which are supposed to compromise a representative suits it is not just the order 1 rule 8 the explanation says a suit under 91 regarding public reasons 92 regarding public charities and trust suit filed by a manager for the hindu undivided family they're all compromise they're all representative suits well uh uh and attain here since he has been asked i'm forced to cite a decision to karnataka high court in this regard probably two decisions of the karnataka high court for better enlightenment i avoided it because there are pursuits from other states but since it has been passed let me report to those decisions the karnataka high court which has it have explained the scope of this compromise in a representative suit i l r 2003 karnataka 25 59 i l r 2003 karnataka 25 59 siddhalingeshwar versus iru pachadoda siddhalingeshwar versus iru pachadoda a decision of a division bench again author by justice rv ravindran when his lordship was the judge of the karnataka high court then we have another judgment of justice n fumar in i l r 2007 karnataka 2894 i l r 2007 karnataka 2894 k s venkatesh versus n g lechmi narayana s venkatesh versus n g lechmi narayana what is meant by the representative suit what is the care which the court is required to take in the case of a representative suit has all been explained very beautifully in this yes any other question this is plaintiff files a suit for declaration of a document as null and white yes suit have been withdrawn under order 23 rule 1 by the plane does it mean that the document sought for declaration becomes a valid after the withdrawal of the suit ally has he sought permission to file a fresh suit or a simple suit for a simple withdrawal simple withdrawal is implicit abandoning the claim as per the question it seems a simplicity withdrawal you know the plaintiff has taken the risk that's all okay next is on the youtube yes in case the suit was decreed long back can it still be compromised at a later stage no if the suit has already been decreed a long back it cannot be compromised unless an appeal is pending or a revision is pending in some court this is by sayed of asudin what are the rights of the third party of if compromise is entitled fraudulently suppressing the other rights as i said certainly an independent suit lies because it's not a party to the compromise actually even ignore that compromise decree but to be on the safer side he can challenge that compromise decree by way of a suit that reload not sink case if we carefully read does not really bar that suit because in that suit as explained by the ternada high court in ilr 2021 which i cited the party who had filed the subsequent suit was claiming under a party who was a party to the earlier suit it was in those circumstances reload not sink case and that a stranger is also bar under order 23 root 3a so therefore certainly an independent suit lies by a third person because he's not bound by it so let's assume the the party's arrived a compromise in a regular second appeal then what will happen case is in appeal also the parties can enter into a compromise parties can withdraw parties compromise with the fraud and that's when in high before that statement does not bind that off section 4 makes it clear of course if a suit is another suit is brought saying that the earlier judgment is a result of fraud certainly the principles of prejudice would not apply it is a matter which requires evidence just going through the client and the written statement the court cannot complete a conclusion that it is a case of pollution or fraud it really requires some evidence those were the questions i will ask the rickram rickram no so thank you sir for sharing your knowledge it's always a pleasure hearing you and i can see on the youtube the algorithm it's as usual it's one on the top thank you sir for sharing your knowledge thank you also for giving me an opportunity to give me an opportunity oh thank you right