Patna High Court
Syeda Kamruddin Ashraff vs Bibi Syed Khatoon And Ors. on 17 May, 2001
Equivalent citations: 2001(2)BLJR1378
Author: S.K. Katriar
Bench: S.K. Katriar
ORDER S.K. Katriar, J.
1. This application under Order XXIII, Rule3 of the Code of Civil Procedure has been preferred by respondent No. 1 of F.A. No. 285 of 1980 (Syeda Kamruddin Ashraffv. Bibi Syeda Khatoon and ors.), challenging adjustment of the appeal which has ended in a compromise between the parties vide order dated 9-4-1997.
2. This application has been filed by the respondent No. 1 of the appeal who was a co-plaintiff. I shall go by the description of the parties occurring in the appeal. Respondent No. 1 had instituted Title Suit No. 157/69/160/76 along with others which was decreed by judgment dated 4-2-1980, and the plaintiffs were given about 90% of the suit property which is a plot of land in the township of Patna measuring about 80 decimals of land. The defendants preferred the present F.A No, 235 of 1980 in this Court. The plaintiffs are the respondents in the appeai. Some of the respondent died during the pendency of the appeal and the heirs have been substituted. The respondents had jointly fought the suit as plaintiffs, and were represented by the same Counsel and were together in the appeal till its disposal by order dated 9-4-1997. The respondents have thereafter divided in two camps. Whereas respondent No. 1 has challenged the validity of the compromise decree, the remaining respondents stand by the same. The appeal remained pending in this Court ever since 1980,and not much of progress took place excepting orders on substitution matters were passed from time to time, nor did the plaintiffs-respondents take any steps in the trial Court for Takhtabandi and preparation of the final decree. Ultimately, a joint compromise petition under Order XXIII, Rule 3, C.P.C. was filed in this Court on 11-3-1997, which was accepted by a learned Single Judge of this Court by his order dated 9-4-1997, and the appeal was disposed of in terms of the joint compromise petition.
3. Thereafter, respondent No. 1 (Bibi Syeda Khatoon) filed an application under Order XLVII, Rule 1, C.P.C. in the appeal on the ground that she had never subscribed to the compromise petition, was not a party to the same, and was an act of fraud attributable to the appellants. The same was originally registered as Civil Review No. 196 of 1998, and was converted into an application under Order XXIII, Rule 3, C.P.C. and has been registered as i,A. No. 196 of 2000 in the appeal itself. By order dated 12-7-2000, the Registrar-General of this Court was directed to conduct a detailed inquiry in the matter and submit a report within six weeKs He has since submitted his report dated 5-2-2001, whereby he has found that respondent No. 1 had appeared in the First Appeal through Sri Ramchandra Lal Das, Advocate, was a party to the compromise petition in terms of which the appeal was disposed of, and no fraud was played on her.
4. During the course of inquiry, respondent No. 1 examined three a witnesses, and the appellants examined four witnesses. Respondent No. 1 alone has challenged the compromise. The remaining respondents own and reaffirm the compromise and did not examine any witness. However, respondent No. 3 (a) (Shaheen Ashraf)had sent a fax message dated 29-8-2000 from Canada to the Registar-General of this Court which is on record and has been noticed in (he inquiry report The first witness on behalf of the respondent No. 1 is Mahtab Ahmad who is her son. He is on the very face of it an interested witness and striver, to support his mothers case In a clumsy manner. The pre varication in his deposition is discernible on a plain reading of it, and enquivocates between admission of the compromise at one place and denial at another. He admits the signature of his mother on the Vakalatnama and the compromise petition at one place and denies at another. This witness is, therefore, untrustworthy. Syed Shamim Ahmad is the second witness on behalf of respondent No. 1 and is her son. He is obviously an interested witness. It appears that he has come to controvert the assertions made on behalf of the appellants and does not seem to be aware of the engagement of Sri Ramchandra Lal Das, Advocate, who is shown to have been jointly engaged by the respondents in the First Appeal. Respondent No. 1 herself is the third and the last witness who has examined he self in support of her application. She has stated in her cross-examination that her case was being looked after by her Munshi. There was a talk for compromise when the appeal was pending in the High Court, but she has not received any money at all Her deposition also does not inspire confidence. She does not seem to be aware of the developments in the litigation.
4-1. It appears from a joint reading of the three witnesses that she is not aware of the day-to-day happenings in the litigation which was being looked after by the Munshi. Vakalatnama in favour of Sri Ramchandra Lal Das appears to have been executed on 13-2-1995 by respondent No. 1 in the appeal. Her signature also appears on the affidavit filed on 11-3-1997 in presence of Sri Lal Bahadur Rai, Advocate's Clerk, on the compromise petition. Her signature also appears on the Vakalatnama executed in favour of Kumar Alok, Advocate, in the present interlocutory application, but curiously enough she puts her thumb impression on her deposition before the Registrar-General, perhaps to avoid comparison of her signatures. While she denies her two signatures on the affidavit and Vakalatnama in favour of Sri R.L. Das, she accepts her signature on the Vakalatnama executed on 28-7-1998 in favour of Sri Kumar Alok, Advocate. It appears to me on a joint reading of this application and the evidence on record that she is an old lady and is not much aware of the happenings in the litigation and is acting at the behest of her Munshi and the sons. Her other two witnesses are interested and unreliable witnesses.
5. The appellants have examined four witnesses. The first one, Syed Nooruddin Ashraf, deposed that he had given a sum of Rs. 1 50 laksh to Syed Shamim Ashraff, Bibi Syeda Khatoon and Shaheen Ashraf on 10-5-1997 as per terms of the compromise. He has fully supported the appellants case on the factum of compromise. A very significant part of his deposition is that the suit property is within his residential compound. Sri Rajeshwar Lal Das is a second witness on behalf of the appellants and had originally received a common Vakalatnama of the respondents. Respondent No. 1 has in her application completely denied to have executed the Vakalatnama in his favour and has also cast aspersions on him. He has stated in his deposition that he does not recognise respondent No. 1, and respondent Shaheen Ashraf who usually used to do Pairvi on behalf of respondent No. 1 and some times used to go to him (Sri R.L Das) with one Shamim Ashraf. He has consistently deposed that he had received Vakalatnama on behalf of the respondents jointly, does not recognise respondent No. 1, and had received Vakalatnama through some-body else. She had gone to him once. He has further deposed that the compromise petition was not signed in his presence, nor affidavited in his presence, which was, in fact, done before the Oath Commissioner. On the whole, there is nothing to discredit his deposition and tends to support the version that the respondents did enter into a compromise. Abdul Khalik is another witness on behalf of the appellants and has supported the appellant's case. To my mind, perhaps the most important witness is Syed Mohammad Rizwani Yusuf, who was an employee in the High Court, and was functioning as the official Oath Commissioner of the High Court on 11-3-1997. He has deposed to the effect that he recognised most of the lawyers Clerks in the High Court. The Oath Commissioner normally does not recognise the deponents, but acts on the basis of the version of the lawyers Clerks. He has further stated that he was particularly attached to the parties of the present case who are all related. He, therefore, clearly remembers that respondent No. 1 had put her signature on the compromise petition before him. It is thus manifest that joint compromise petition was affidavited in his presence and under his signature. He has since superannuated from service. In view of the position that he knows the parties very well, and is an independent witness, I can safely rely on his deposition that respondent No. 1 did record her signature on the joint compromise petition in the presence of this witness.
6. I must at this stage deal with the objections raised by the learned Counsel for the parties. Learned Counsel for respondent No. 1 has submitted that the appellants have not filed any objection to the inquiry report. The contention is stated only to be rejected. The inquiry report is in their favour and, therefore, there is no need to rebut the same.
6-1. He has taken objection to the deposition of Ramchandra Lal Das, Advocate, on the ground that he claims to have filed Vakalatnama on behalf of the respondents in the appeal, and has appeared as a witness for the appellants. I see no objection to the same for the reason that he has been completely disowned by respondent No. 1, she has in her application cast aspersions on him, and his personal reputation is at stake. She has engaged another lawyer for this application, and he no longer represents any side in this matter. He was, therefore, free to appear as a witness for any party. Further more, it appears to me from a plain reading of his deposition that he has not made any effort to depose incorrectly.
6-2. Similar objection has been raised with respect to witness No. 3, Syed Md. Rizwani Yusuf, a former Oath Commissioner of the Patna High Court, who has come as a witness for the appellants. I see no objection to the same for the reason that he does not represent any cause in the appeal. He is a most competent and independent witness. He has since retired and, therefore, no objection can be taken that he appeared as a witness for one or the other person.
6-3. Learned Counsel for respondent No. 1 has also taken objection to the reception of the fax message received from Shaheen Ashraf, one of the respondents and a party to the compromise petition. He has in his fax message dated 29-8-2000 to the Registrar-General stated that he has sent the message because he has received a Dasti summon from him. As I have stated hereinabove, the respondents have split into two groups, one of which is the camp of respondent No. 1 who has assailed the compromise petition, and the other group consists of the remaining respondents who had equally joined the compromise with her, have not resiled from the same, and are opposing her at this stage. Learned Counsel for respondent No. 1 is right in his objection that this fax message could not have been considered or relied upon by the Registrar-General for the reason that it cannot be treated to be piece of evidence. A document or statement becomes evidence only after it is subjected to cross-examination. None had proved this fax message before the Registrar-General and was, therefore, not marked as an exhibit. Therefore, the Registrar-General has erred in considering this fax message. I have, therefore, completely omitted the same from my consideration.
6-4. Next and the last objection raised on behalf of respondent No. 1 is that the suit was decreed in full (all the respondents herein who were the plaintiffs in the suit), as a result of which the plaintiffs-respondents got about 90% of the suit property, and the defendants-appellants got about 10% of the suit property. Learned Counsel further submits that the suit property consists of about 80 decimals of valuable land in the township of Patna, the valuation of which by a conservative estimate on the date of compromise cannot be less than rupees five lakhs per Katha (four decimals). In other words, market value of 90% of the suit property comes to about 90 lakh rupees. No person in his senses would agree to accept Rs. 1.50 lakh for such a valuable property. The contention on the face of it appears to be attractive, but I am unable to entertain the same for the reason that the same has neither been raised in this application, nor is there the slightest evidence before the Registrar-General, nor was it at all raised before him during the course of oral arguments. The objection is, therefore, rejected.
7. Learned counsel for the appellants has submitted in support of the inquiry report that the suit was decreed way back in 1980 and the respondents did not take any step at all for Takhtabandi and carving out the shares which shows that respondents have not been interested in the suit property. It appears to me that the suit property is situate within the residential premises of the appellants. Further more, most of the respondents of the other camp who are also decree holders are settled abroad. The respondents may be finding either difficult to get possession of the suit property because of its location, or some of them may not be interested in it. Respondent No. 1 is 80 years old. therefore, they may have compromised the appeal by agreeing to receive the cash instead of engaging themselves in a seemingly interminable litigation. They may also have reminded themselves of the age-old legal adage that the problems of the decree-holder begin after he obtains the decree.
7-1. He has rightly submitted that all the three witnesses examined by respondent No. 1 are interested and/or unreliable witnesses. Shamim Ashraf, one of her witnesses had deposed in support of her mother's case before the trial Court, but has denied before the Registrar-General having done so. He is further right in his submission that Mahtab Ahmad, another witness of respondent No. 1, has deposed equivocally during the inquiry. The evidence of the three witnesses have been discussed hereinabove.
7-2. He has further submitted that Syed Md. Rizwani Yusuf, former Oath Commissioner of the Patna High Court, and Sri Ramchandra Lal Das, are the two independent witnesses on behalf of the appellants who have fully supported the compromise. He has particularly placed reliance on the deposition of Syed Md. Rizwani Usuf, the former Oath Commissioner. The contention is correct, and this aspect of the matter has been discussed above.
8. On a consideration of the entire materials on record including the reoortof the Registrar-General and the contentions advanced by the parties, I am of the view that respondent No.1 did enter into a compromise and the appeal was disposed of in terms thereof. The compromise petition was a valid and genuine document and respondent No. 1 has made a mala fide attempt to disown the same. I am convinced that the appeal was validly and properly resolved in view of joint compromise petition dated 11-3-1997 of the parties filed under Order XXIII, Rule 3, C.P.C. The appeal had been adjusted by the volition of the parties, and the present application of respondent No. 1 under the proviso to Order XXIII, Rule 3, C.P.C, assailing the validity of the compromise petition, is hereby rejected.
9. This takes me on to the last aspect of the matter, namely, the aspersions cast on Sri Ramchandra Lal Das, the lawyer who had originally been given in the appeal the joint Vakalatnama on behalf of the respondents, but disowned by respondent No. 1 after she has assailed the validity of the compromise. I am indeed sorry that aspersions have been improperly and unjustifiably cast on him which was done with the mala fide motive of putting up the present application. I record my feeling of displeasure against respondent No. 1 and all those who have helped her in putting up the present application which they thought would be possible only by disowning Mr. Das as their Advocate. This Court is convinced that Mr. Das had received a joint Vakalatnama on behalf of the respondents, respondent No. 1 did subscribe to the joint compromise petition, and he had not done anything which would bring dishonour to him.
10. In the result, I.A. No. 196 of 1998 is hereby rejected, and the order dated 9-4-1997, passed by this Court disposing of the appeal in terms of the compromise petition, is hereby up held.