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PETITIONER: DHIRENDRA KUMAR GARG AND ORS.

       Vs.

RESPONDENT: SMT. SUGANDHI BAI JAIN & ORS.

DATE OF JUDGMENT23/09/1988

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PATHAK, R.S. (CJ) KANIA, M.H.

CITATION:  1989 AIR  147            1988 SCR  Supl. (3) 196  1989 SCC  (1)  85        JT 1988 (3)   778  1988 SCALE  (2)1539

ACT:     Code of Civil Procedure, 1908: 0.32. Rule  7--Compromise decree--Minor represented by guardian--Application for leave Court to see that compromise was not one sided.

HEADNOTE:     The  husband of respondent No. l sought eviction of  the appellants-tenants. The suit was decreed in his favour along with  money decree for arrears of rent and  damages.  During the pendency of the appeal the plaintiff died and his  legal representatives were substituted as respondents. Some of his children  who were minor were placed under the  guardianship of respondent No. 1. Consequent to a petition by the parties a  compromise  decree was passed setting  aside  the  entire decree. The respondents thereafter challenged the compromise decree.  The trial court dismissed the suit. On  appeal  the first appellate court reversed the decision. The High  Court dismissed the appeal, preferred by the appellants.     In this appeal by special leave it was contended for the appellants  that as a consideration for the compromise  they were  giving up their right to claim costs which might  have been decreed by the appellate court in case of their success on  merits. The respondents’ case was that the  guardian  of the  minors was guilty of gross negligence in entering  into the  compromise  by failing to take into  consideration  the interest of the minors.     Dismissing the appeal,     HELD: The decision of the courts below does not call for any  interference.  The compromise decree is fit to  be  set aside on the ground of gross negligence. [199F; 199Cl     The  compromise  was one sided whereby the  minors  were giving up their right under the trial court’s decree both in respect of eviction as well as arrears of rent and  damages. In view of the provisions of Order XXXII, Rule 7 of the Code of  Civil Procedure it was essential for the Court  to  have                                                   PG NO 196                                                   PG NO 197 granted  permission  to  the  guardian  to  enter  into  the compromise   only   after  considering  all   the   relevant circumstances. [198F; 198C-D]

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   The earlier civil appeal is restored to its file  before the  Additional  District Judge for disposal  in  accordance with law. [l99G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  350  of 1977.     From  the  Judgment and Order dated  19.10.1976  of  the Madhya Pradesh High Court in Second Appeal No. 385 of 1974.     S.N. Kacker and Shri Narain for the Appellants.     Harish N. Salve, Mrs. P.S. Shroff, S.S. Shroff and  S.A. Shroff for the Respondents.     The Judgment of the Court was delivered by     SHARMA, J. This appeal by special leave arises out of  a suit filed by the respondent for setting aside the decree in an  earlier suit being Suit No. 61-A of 1955  instituted  by Dammu  Lal,  husband of the respondent No. 1 and  father  of respondent No. 2 to 12, for eviction of the appellants  from a  building  in  Raipur  which is  in  their  occupation  as tenants.  Dammu Lal also prayed for a decree for arrears  of rent and damages. The prayer for eviction was allowed  along with a money decree for Rs.260 as arrears of rent and Rs.137 as damages the tenants filed an appeal which was numbered as Civil  Appeal  No 7-A of 1965. During the  pendency  of  the appeal  Dammu  Lal died and his legal  representatives  were substituted as respondents. Some of his children were  minor who were placed under the guardianship- of their mother Smt. Sugandhibai, respondent No. l. An application purporting  to be  a compromise petition on behalf of all the  parties  was filed  before the court which was recorded and the suit  was disposed  of  in  its  terms  by  the  appellate  court   on 23.4.1966. According to the compromise the entire decree was set  aside  and  the suit was dismissed,  with  the  parties bearing their own costs. The respondents have challenged the compromise decree by the present suit.     2.  The  trial court dismissed the suit. On  appeal  the first  appellate court reversed the decision, set aside  the compromise  decree and directed the Civil Appel No.  7-A  of 1965  to be disposed of afresh1 in accordance with  law.  By                                                   PG NO 198 the  impugned judgment the High Court dismissed  the  second appeal preferred by the appellants.     3. Mr. Kacker, the learned counsel appearing in  support of  the  appeal, placed the facts relevant  to  the  several questions  raised by the parties and decided by  the  courts below  and contended that the decision of the High Court  is illegal on several grounds. We do not consider it  necessary to go into all the questions disposed of by the courts below as the respondents are, in our view, entitled to succeed  in the suit on one of the several points urged on their  behalf which is discussed below.     4.  As  has  been stated earlier,  some  of  the  party- respondents in Civil Appeal No. 7-A of 1965 including  Kamal Kumar,  one  of the sons of Dammu Lal, were minor  and  were represented  by  Mr.  Makasdar, Advocate.  In  view  of  the provisions  of  Order XXXII, Rule 7 of  the     Code  of Civil  Procedure,  it was essential for the  court  to  have granted  permission  to  the  guardian  to  enter  into  the compromise   only   after  considering  all   the   relevant circumstances. From the records of the case it appears  that the  court before recording the compromise sanctioned  leave in the following words:     "As the appellant is prepared to forego the entire  cost

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of the proceedings, it is in the interest of the minors  and benefit  of the minors that this appeal be compromised.  The minor-respondents are represented by senior counsel and  his opinion  is that it will be in the interest of the minor  to compromise the appeal. In view of this, I have no reason  to disagree with him. I am satisfied that the compromise is  in the  interest of the minors, hence, I allow the  application and  grant  the necessary permission under Order 32  Rule  7 C.P.C.  to the learned counsel of the minor  respondents  to compromise the appeal."     On the face of it, the compromise was one sided  whereby the  minors     were giving up their right under the  trial court’s  decree  both  in respect to  eviction  as  well  as arrears  of  rent  and  damages.  It  is  said  that  as   a consideration for the compromise the appellants were  giving up  their       right to claim costs which might have  been decreed by the appellate court in case of their success  c.n merits. According to the respondents’   case which has  been accepted by the two courts below the guardian of the  minors was  guilty  of gross negligence in entering  into  the  com promise by failing to take into account the interest of  the minors.  On behalf of the appellants it has  been  contended                                                   PG NO 199 that during the pendency of Civil Appeal No. 7-A of 1965 the M.P. Accommodation Control Act was passed and the decree  of the trial court was likely to be set aside. In that view, it is  urged, the minor’s guardian through Mr.  Makasdar  acted rightly in settling the dispute and thus saving a decree for costs which could have been passed against them.     5. According to the further case of the respondents  the relevant circumstances and the terms of the compromise  were never  explained  to the respondent No. 1 and  Mr.  Mokasdar asked   for  the  court’s  permission  to  enter  into   the compromise  on behalf of the minor without  any  instruction from  their guardian in this regard. It is also  urged  that the  language  of the order whereby the  court  granted  its permission  indicates that the court did not apply its  mind independently.  However, we do not consider it necessary  to decide  these  points as also several others raised  by  the parties  as  in our view the compromise decree must  be  set aside on the ground of gross negligence.     6. It has not been suggested on behalf of the appellants in  the present case that there was any ground available  to them  to successfully challenge the money decree  passed  in the  earlier  suit. Mr. Kacker also has  not  suggested  any possible  ground  against  that  part  of  the  decree.  He, however,  said  that the decree was not  for  a  substantial amount as it was for less than Rs.400, and should  therefore be ignored for the purposes of this case. The question as to whether  the amount was substantial or not has to be  judged in  the  light of the circumstances in the  case.  Here  the building in question was a small one fetching a small amount of  rent  and  a  sum of Rs.400  could  not  be  ignored  as inconsequential   or  unsubstantial.  It  has  also  to   be remembered  that even the cost in such a suit which was  the sole  consideration for the compromise could not be a  large sum.  Besides,  neither the minors advocate  nor  the  court appears to have really considered the impact of the rent Act on  the  fate of the appeal which came in force  during  the pendency  of  the litigation. We, therefore, hold  that  the compromise  decree is fit to be set aside, and the  decision of  the  court  below does not call  for  any  interference. Accordingly Civil Appeal No. 7-A of 1965 is restored to  its file  before  the II Additional District Judge,  Raipur  and will  now be disposed of in accordance with law. The  appeal

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is dismissed with costs payable to respondents No. I to 12. P. S . S .                               Appeal dismissed .