MEHRAJ UD DIN MALLA & Ors. v. None

O R D E R 10.09.2025

In the instant petition, the petitioners herein have challenged order dated 30.11.2023, passed by the Court of Sub Judge, Chadoora in case titled as “Mst. Zaina Vs. Mst. Fazi & Ors.” .

The facts emanating from the record would reveal that the respondent herein filed a suit for declaration, partition, possession and injunction inter alia against the mother of the petitioner herein namely Mst. Fazi and other defendants as well on the premise that the father of the plaintiff-respondent herein namely Abdul Satar Mir after his death left behind property consisting of residential house and land situated at Hussipora, Chadoora alleging that the said defendants occupied the said property after the death of the father of the plaintiff-respondent herein as the plaintiff-respondent was minor at the time and did not partition the said property in order to give respective share/s to the plaintiff-respondent herein upon requests made by plaintiff- respondent herein and infact the said defendants refused to partition the property in question as the defendant in the suit even without any right have got even mutations attested in respect of the property in question in their favour inasmuch as also obtained a Compromise Decree fraudulently as well from the court of Munsiff, Budgam way back in the year 1969, when the plaintiff-respondent herein was a minor.

Out of the defendant impleaded in the suit supra, the present petitioners being the son and daughter of the original defendant Mst. Fazi the sister of the plaintiff-respondent herein, during the pendency of the suit supra filed an application before the trial court seeking rejection of the same on the ground that the suit is not maintainable in view of the provisions of Order 23 Rule 3(A) CPC, which application, however, came to be dismissed by the trial court in terms of impugned order dated 30.11.2023.

The said applicants before the trial court and petitioners herein have challenged the impugned order on multiple grounds urged in the petition. Heard counsel for the petitioner and perused the record.

It is significant to mention here that when the instant matter came up for consideration on 03.09.2025 before this Court, Mr. M.I. Qadri, learned Senior Advocate appeared on behalf of respondent herein and came to be heard partly in response to the arguments of the counsel for the petitioners, as on the said date the matter was adjourned at the request of Mr. Qadri, for 04.09.2025 for concluding of the arguments. However on 04.09.2025, Mr. Qadri, counsel for the respondent did not chose to appear, as a consequence whereof, the case was fixed for further consideration on 08.09.2025 on which date as well neither the respondent appeared nor did her counsel, as a result whereof, the respondent herein came to be set ex-parte.

Today, when the case come up for further consideration, the counsel for the petitioners herein invited the attention of this Court to the decision of the Apex Court passed in case titled as “M/S Sree Surya Developers and Promoters Vs. N.Saliesh Prasad & Ors. reported in 2022(5) SCC 736” and would submit that the said judgment squarely covers the case of the petitioners herein and that in terms of the judgment, the order impugned is not legally sustainable.

Record available in the file reveals that the petitioners herein had preferred an application for rejection of the plaint/suit filed by the respondent herein being defendants in the said suit on the ground that respondent herein could not institute the suit for declaration, partition, possession and injunction qua the subject matter, being the estate of the father of the respondent herein, because a Compromise Decree in respect of the said estate of the father of the respondent herein stands passed by the Court of Munsiff, Budgam on 06.09.1969, wherein the respondent herein was also a party and that the suit filed by the respondent herein in essence seeks setting aside of the said Compromise Decree dated 06.09.1969 on the ground of alleged fraud as the respondent in the suit has contended that at the time of the passing of the said Compromise Decree passed on 06.09.1969 she was a minor and no compromise could have been entered by her and consequently the suit could not have been settled/compromised and that the said decree thus, stands obtained by fraud by the plaintiffs therein in the said suit.

Record would also reveal that the petitioners herein sought the rejection of the suit/plaint filed by the respondent herein under Order 7 Rule 11 CPC while invoking the provisions of Order 23 Rule 3(A) CPC, which provision provides that though a Compromise Decree alleged to have been obtained by fraud can be challenged, but Rule 3(A) of Order 23 CPC prohibits the filing of a suit there for. A closer examination of the said provisions of Order 23 Rule 3(A) indisputably provides for a bar to the institution of a suit against a Compromise Decree inter se the parties and the Apex Court has in this regard in the judgment of Ms/ Sree Suraya Developers and Promoters supra expressed the same view.

Viewed thus, in view of the aforesaid position obtaining in the matter, the instant petition succeeds while the same is being treated as a petition under Article 227 of the Constitution, in that, the perusal of the impugned order would reveal that the trial court has grossly erred while passing the impugned order and in the process caused failure of justice.