Judgment:
ORDER
R.C. Lahoti, J.
1. This is a petition under Article 227 of the Constitution filed by the landlord/plaintiff/appellant feeling aggrieved by the order dated 27-8-1993 passed by the District Court directing remand of a suit for retrial in supersession of the order of the trial Court which had directed the suit to be dismissed.
2. The facts relevant for the purpose of this petition may briefly be noticed. Undisputedly, the plaintiff/petitioner is the owner of the suit accommodation, non-residential in nature, where the non-petitioner is a tenant. The suit seeking ejectment of the tenant on the ground available under clause (f) of sub-section (1) of Section 12 of the M. P. Accommodation Control Act, 1961 was filed in the Court of Civil Judge Class II, Jabalpur on 14-9-1987. The trial proceeded. At the stage of evidence on 12-8-1991, an application was filed wherein no provision of law is mentioned. It purports to be signed by both the parties. Therein it was prayed that the matter was amicably settled between the parties on 6-8-1991 and hence the suit may be dismissed. Though a copy of deed of private compromise dated 6-8-1991 drawn up on stamp paper worth Rs. 10/- was filed along with the application, it is clear that neither recording of the compromise was prayed for nor did any of the parties pray for any decree being passed in terms of the said private compromise dated 6-8-1991. As stated, the only prayer made was the Court be pleased to dismiss the suit.
3. On 19-8-1991 the defendant filed an objection petition styled as reply to the application dated 12-8-1991 wherein it was stated that the plaintiff had mischievously taken illegal possession of the suit premises depriving the defendant of his several items of the property which were kept in the premises. It was also submitted that the alleged application for compromise dated 12-8-1991 or the deed of alleged compromise dated 6-8-1991 did not bear the signature of the defendant.
4. The trial Court proceeded to make an enquiry treating the application dated 12-8-1991 as one filed under Order 23, Rule 3, Civil Procedure Code. Having arrived at a finding that the compromise had taken place, the trial Court directed the suit to be dismissed as compromised. As against the decree of the trial Court, the defendant preferred a regular appeal. The lower appellate Court formed an opinion that the suit was governed by Section 12 of the Accommodation Control Act and inasmuch as availability of ground for ejectment within the meaning of any of the clauses of Section 12(1) was not recorded therein, the compromise was illegal and there was no question of any decree being passed in terms thereof. The District Court allowed the appeal and remanded the suit to the trial Court for disposal in accordance with law;
5. Having heard the learned counsel for the parties, we are of the opinion that the petition deserves to be allowed. We are unhesitatingly of the opinion that both the Courts below have gone completely astray in treating the application dated 12-8-1991 as one filed under Order 23, Rule 3, Civil Procedure Code. Though purportedly signed by both the parties, it was a pure and simple application under Rule 1 of Order 23, Civil Procedure Code seeking abandonment of the suit and consequently its dismissal. The trial Court had absolutely no other option but to dismiss the suit as prayed by the plaintiff without regard to the fact whether it was signed by the two parties or whether it was objected to by the defendant.
6. Order 23, Rule 3, Civil Procedure Code applies when a suit has been adjusted wholly or in part or where the defendant has satisfied the plaintiff's claim either in whole or in part and the parties or anyone of them seeks recording of such agreement, compromise or satisfaction, followed by a decree to be passed in accordance therewith. In the case at hand, neither party had prayed for any agreement or compromise being recorded. It was not in the contents of the application that the plaintiff's claim, either in whole or in part, was satisfied. No decree was required to be passed, whatever might have happened out of the Court. The prayer made by the plaintiff was simply for dismissal of the suit. The filing of the copy of the private compromise dated 6-8-1991 along with the application dated 12-8-1991 was meaningless. It was merely an information to the Court that something had taken place between the parties on 6-8-1991. The Court was not called upon to take cognizance of that event. The Court had to do nothing with the event dated 6-8-1991. The plaintiff had unconditionally abandoned his claim made in the suit and wanted the same to be terminated without any adjudication on merits.
7. It may be stated that the learned counsel for the petitioner has reiterated his stand before us too. He has submitted that the plaintiff was not at all desirous of prosecuting his suit. Thus, it is clear that the remand made by the District Court would be a futile formality. Assuming that the remand order is allowed to stand, on the first date appointed for appearance before the trial Court, the plaintiff may choose not to appear which would entail dismissal of the suit for non-prosecution. The plaintiff may appear and declare (as he has done before us) that he was not interested in prosecuting the suit. The trial Court would have no other option but to dismiss the suit. No law or authority has been brought to our notice which might compel a plaintiff to pursue his civil suit though he does not want to proceed with the same.
8. The learned counsel for the defendant/respondent submitted that fraud was played upon him by the plaintiff by depriving him of the tenanted premises in his possession otherwise than in due course of law. The remedy of the tenant lies in initiating his own proceedings seeking restoration of the premises. Whether he has been defrauded or subjected to force, that would all be inquired into but only in the proceedings charging the plaintiff with having committed any illegality with him during the pendency of the suit that does not vest the defendant with any right to compel the plaintiff to proceed with the suit which he wants to be dismissed simply.
9. We are therefore of the opinion that the order of remand made by the lower appellate Court was wholly unwarranted and without jurisdiction. The trial Court too was wrong in proceeding under Order 23, Rule 3 of the Civil Procedure Code. Both the orders of the Courts below therefore deserve to be set aside.
10. The learned counsel for the defendant-respondent has placed reliance on Banwarilal v. Smt. Chando Devi and Anr., 1993 MPLJ (SC) 469 = AIR 1993 SC 1139, wherein their Lordships have held :
'A party challenging a compromise can file a petition under proviso to Section 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 1A of Order 43 of the Code. 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.'
We have carefully perused the judgment. It is obviously distinguishable. In Banwarilal's case (supra) the prayer made before the trial Court was for dismissal of the suit in view of the compromise arrived at between the parties. The trial Court too had recorded the compromise and then directed the suit of the plaintiff to be dismissed as per compromise deed and a decree sheet to be prepared accordingly. Such is not the case at hand. To bear out the distinction, we extract and reproduce the following passage from para 10 at Banwarilal's case (supra) :
'From the copy of the petition which was filed on 27-2-1991 it appears that the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which the plaintiff-appellant had thereafter no connection with the disputed land and defendant-respondent shall be deemed to be in possession and the owner of the said disputed land. The prayer made in the said petition also says that the compromise may be ordered to be accepted. On basis of that petition, as already mentioned above, the Court Passed an order saying that the compromise had been accepted. In the order it has been mentioned that the suit of the plaintiff be 'dismissed as per compromise deed Ex. C'.
The case at hand is entirely different.
11. Last but not the least it was submitted by the learned counsel for the defendant-respondent that the present petition under Article 227 of the Constitution was not maintainable and the remedy of the plaintiff/petitioner was to have filed an appeal challenging the order of remand of the District Court. This contention has to be rejected for two reasons. Firstly, there was no decree passed by the trial Court. The order made by the trial Court did not amount to a decree within the meaning of Section 2(2) of the Civil Procedure Code as there was nothing adjudicated upon nor was there any determination of any rights or matter in controversy. As such the appeal before the lower appellate Court preferred by the defendant/respondent was itself not maintainable. That incompetent appeal has been allowed and an order of remand passed which being one without jurisdiction, is suitably capable of being challenged under Article 227 of the Constitution. Secondly, even if an appeal would have been preferred, that would also have been filed in this Court. The forum would have remained the same. The parties are before us and we have heard them finally. We have seen no merit, in adopting the circuitous route of dismissing this petition and asking the petitioner to file an appeal wherein also the result achieved would be the same though belatedly.
12. For the foregoing reasons, the petition is allowed. The impugned orders of both the Courts below are set aside. Instead, it is directed that in view of the application dated 12-8-1991 the suit filed by the plaintiff shall stand dismissed under Order 23, Rule 1, Civil Procedure Code. Needless to say, the dismissal of the plaintiff's suit shall not prejudice the defendant-tenant's right of pursuing such remedy as he may have under the law if he has been defrauded or deprived of the tenancy premises otherwise then in due course of law. No order as to the costs of the petition.