Jammu and Kashmir High Court Overturns Appellate Court's Erroneous Order on Appeal Withdrawal

The High Court clarifies the distinction between compromise and withdrawal of appeal under Civil Procedure Code, restoring the appeal of Sara Begum.

The Jammu and Kashmir High Court, in a recent judgment delivered by Justice Sanjay Dhar, set aside an order by the Principal District Judge, Kulgam, which had erroneously treated an appeal withdrawal as a compromise under Order XXIII Rule 3 of the Civil Procedure Code, 1908 (CPC). This decision came in the case of Mehraj Ahmad Ganai and another versus Mst. Sara Begum and others.

The dispute revolved around a piece of land measuring 22 kanals and 8 marlas in Village Mah, Kulgam. A decree dated 12.10.1998 had initially been challenged by Mst. Sara Begum, but her suit was dismissed by the trial court on 27.03.2018. During the appellate proceedings, a compromise deed was presented, leading to the appeal's withdrawal on 23.01.2019. However, this withdrawal was later contested by the defendants, citing issues such as non-signature by all parties and allegations of fraud.

The High Court scrutinized the matter and found that the appellate court had not passed a decree based on the compromise, nor had it recorded satisfaction about its terms. Justice Dhar emphasized that the mere filing of a compromise deed does not constitute a compromise under Rule 3 unless a decree is passed, and the statements of the parties are recorded. Hence, the appellate court's action to recall the compromise was deemed beyond its jurisdiction.

Moreover, the High Court highlighted that an appellant has the unfettered right to withdraw an appeal under Order XXIII Rule 1 CPC without seeking permission to file a fresh appeal. The appellate court's action to restore the appeal effectively compelled the appellant to pursue it, which is not permissible.

Ultimately, the High Court allowed the petition of Mst. Sara Begum, setting aside the impugned order dated 11.03.2025, and dismissed the petition filed by Mehraj Ahmad Ganie. This judgment reaffirms the legal principles surrounding compromise and appeal withdrawal, providing clarity on the jurisdiction of appellate courts in such matters.

Bottom Line:

Provisions of Order XXIII Rule 3 CPC are applicable only where a decree is passed based on a lawful compromise proved to the satisfaction of the court. Withdrawal of appeal without insisting on a decree does not invoke Order XXIII Rule 3 CPC, but falls under Order XXIII Rule 1 CPC.

Statutory provision(s): Order XXIII Rule 3 CPC, Order XXIII Rule 1 CPC, Article 227 of the Constitution of India.

Mehraj Ahmad Ganai v. Mst. Sara Begum, (Jammu And Kashmir)(Srinagar) : Law Finder Doc Id # 2821174