1990 PLP 940 (MLD)

In instant case an appeal was filed against eviction decree. During pendency of same the landlord died and his L.Rs. were substituted as respondents. The minors were placed under guardianship of their mother. An application purporting to be a compromise petition was filed on behalf of all the parties according to which entire decree was set aside. On the face of it the compromise was one sided only 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. And as a consideration for compromise the appellants were giving up their right to claim costs which might have been decreed by appellate Court in case of their success on merits. In these circumstances the guardian of minors was guilty of gross negligence in entering into compromise by failing to take into account the interest of minors. Neither the minors' advocate nor the Court appeared 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. The compromise was liable to be set aside. LALIT MOHAN SHARMA, J.‑‑This appeal by special leave arises out of a suit filed by the respondents 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 respondents Nos. 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 alongwith 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 Sint. Sugandhibai, respondent No.1. 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 Appeal No. 7‑A of 1965 to be disposed of afresh in accordance with law. By 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. Mokasdar, 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 forgo the entire cost 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 minors 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, T allow the application and grant the necessary permission under Order 32, Rule 7, C.P.C. to the learned counsel of the minors 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 on 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 compromise by failing to take into account the interest of the minors. On behalf of the appellants it has been contended 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 he set aside. In that view, it is urged, the minors' guardian through Mr. Mokasdar acted rightly in settling the dispute and thus saving a decree for costs which could have beep 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 minors 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 g 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 far 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 C 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 IInd Additional District Judge, Raipur and will now be disposed of in accordance with law. The appeal is dismissed with costs payable to respondents Nos.1 to

12. Z.S./238/F.C. Appeal dismissed.