Orissa High Court
Hakimatun Nisa Bibi vs Md. Fakiruddin Khan And Ors. on 16 November, 1992
Equivalent citations: 1993(I)OLR90
JUDGMENT S.C. Mohapatra, J.
1. Defendant No. 9, wife of defendant No. 2 is the petitioner in this Civil Revision.
2. In a suit for partition of properties of late Abdul Latif Khan among his widow and children except one daughter who had gone away to Pakistan with her husband, plaintiff filed an application for addition of some properties in the schedule of plaint for partition and for addition of petitioner as defendant No. 9 without any amendment to the description in the body of the plaint. Said prayer was allowed on 25-9-1984 on which day it was filed. Without calling upon the plaintiff to file amended plaint as required under Order 6, Rule 18, CPC, amendment was incorporated in the plaint by the office. On the same day, all the parties including the newly added defendant No. 9 filed an application for compromise of the suit. Defendant Nos. 4 to 7 and defendant No. 9 filed a Vakaiatnama with special power in favour of an Advocate. Trial Court passed the following order:
"......The compromise petition is read over and explained to the plaintiff and defendants, 1 to 3, 8 and the adv. for defendants Nos. 4 to 7 and 9 who holds special power in open Court. They admitted the contents of the compromise petition to be correct. The compromise being lawful is accepted.
Hence the suit is decreed finally in terms of the compromise petition. The petition of compromise do form part of the decree."
3. On 16-5-1986, defendant No. 9 filed an application stating that the building and 5 decimals of land over which it is constructed within Balasore town was purchased by his father-in-law in her name and name of his youngest son defendant No. 4 on account of love and affection towards them. Defendant No. 2, her husband was acing as the agent and collecting rent from the house by letting it out She is a Pardanashin lady knowing only to sign in Urdu and has no knowledge of litigation or management of property. Defendant Nos. 2 to 4 influenced defendant No. 1 who is a simple man who believed his brother. Being influenced defendant No. 1 got some plain papers impressed with her thumb from the applicant stating that the same is necessary for addition of party in the litigation among brothers on 25-9-1984. when she did not get the monthly rent of the house for about six to seven months, she became suspicious and making enquiry through a neighbour came to know that the house had been got divided among the brothers. Therefore, she prayed that the compromise dated 25-9-1984 not being lawful and being fraudulent is to be cancelled. This was registered as a misc. case Under Section 151, CPC.
4. Defendant Nos. 1 and 3 to 8 filed an objection to the application denying the assertions in the petition. Their case is that on intervention of well-wishers there was compromise and the disputed property fell to the share of defendant No. 4. Petitioner understood the contents of the compromise and gave her consent. In respect of the disputed house a proceeding was initiated by the petitioner and her ,husband before the Controller under the Orissa House Rent Control As against the tenant where they have admitted the house to have fallen o share of defendant No. 4. Since parties have taken possession of the respective allotted properties, defendant No. 3 is now residing in the house under dispute.
5. Trial Court enquired into the petition where petitioner examined herself and other three witnesses in support of her case. Opposite parties examined two witnesses and exhibited the compromise petition in support of their case. Trial Court disbelieved the case of the petitioner and dismissed the application against which order this Civil Revision has been filed.
6. In course of hearing, it is seen that the properties incorporated as items 11 and 12 to the Schedule of the plaint on 25-9-1984 are the property in dispute in this case.
7. In this Civil Revision main questions for consideration are. whether the trial Court had jurisdiction to consider the application and if at all it had the jurisdiction, whether it exercised the same with material irregularity.
8. Petitioner invoked the inherent power of the Court as envisaged in Section 151, CPC. Inherent power is vested in a Civil Court to do justice. There is no statutory limitation for exercise of this power. However, keeping in mind that wider the power greater should be the restraint, apex Court and this Court have indicated the guidelines where-from it can safely be deduced that the power is to be exercised where the prejudice would be such that the same cannot be eradicated by any alternate mode. Therefore, 1 am of the view that where the prejudice, if any, can be agitated in appeal or in any other statutory provision, inherent power ought not to be exercised. Where inherent power is exercised in respect of matters which can effectively be considered under other provisions of law, it may amount to material irregularity in exercise of jurisdiction. Similarly, where a Court refuses to invoke the inherent power to mitigate grievance of a party which if remains unmitigated for all time to come or for such a long time that the prejudice of the party is almost permanent in nature, the same may amount to material irregularity in exercise of jurisdiction. Conclusion would also depend on facts and circumstances of each case.
9. In the present case, petitioner seeks to avoid the compromise decree passed on the basis of the order recording compromise under Order 23, Rule 3, CPC. Language of Order 23, Rule 3, CPC is clear to the effect that the order recording compromise is to be made on satisfaction of the Court. For having satisfaction, a Court would require proof that (i) there is a compromise in writing, (ii) the compromise is signed by the parties and (iii) such compromise is lawful. Where the compromise is void or voidable under the Indian Contract Act, it shall not be deemed to be lawful as provided in the Explanation to Order 23, Rule. 3, CPC.
10. Before making an order recording the compromise, if a party denies to have entered into the compromise. Court is to make an enquiry into the matter as per Order 23, Rule 3, Proviso. Keeping in view the public policy of expeditious finality of a litigation, it has been provided that for the purpose of enquiry, no adjournment shall be granted to a party unless for reasons to be recorded Court thinks fit to grant such adjournment. Principle of natural justice of audi alteram pattern being subject to statutory provision, refusal to grant adjournment cannot be said to have violated the principle of natural justice in view of Order 23, Rule 3, Proviso, CPC.
11. If the Court decided that there was no compromise, it has to proceed with the suit and pass a decree ultimately on merits. Under Section 96, an appeal lies against such a decree. Where, however, trial Court decides that there is a lawful compromise and passes and order to record the same and on that basis passes a decree, normally no appeal would lie as provided Under Section 96(3), CPC, which provides that no appeal shall lie from a decree passed by the Court with consent of parties. Order 23, Rule 3-A bars a suit to set aside a decree on the ground that the compromise on which a decree is passed was not lawful. However, Order 43, Rule 1-A (2) provides that in an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the decree should or should not have been recorded. Hence, Section 96(3), CPC is to be read with Order 43, Rule 1-A (2) and it has to be held that where the appellant challenges that the compromise has been recorded by the trial Court without proper satisfaction, an appeal can be filed by him. There would be no difficulty where the Court has made an enquiry on denial of a party that there was an enquiry since materials would be available on record which would be brought to the record by parties at that time and appellate Court can decide the question on those materials. Difficulty would arise where the party is not able to deny the allegation of the other party that there is a compromise on the basis of which the decree has been passed. In such a case, aggrieved party can take assistance of Order 41, Rule 27, CPC by bringing additional evidence to record which would be considered by the appellate Court on its own merits. Therefore, a party who claims that he has not given any consent for deciding the suit on compromise, is not remediless and his grievance can be mitigated by the appellate Court if he is able to satisfy that he had no consent.
12. As has been provided in Order 23, Rule 3, Explanation, the compromise would not be lawful where it is void or voidable under the Contract Act. Consent obtained by fraud, misrepresentation, coercion or undue influence is either void or voidable. Similarly, a consent in respect of a matter which is contrary to law is also void. Appellate Court can examine the allegation on these grounds. An order which is void is normally not required to be avoided. Whenever such an order is relied upon, it can be resisted on the ground that it is void and of no effect. However, in decision of the Supreme Court reported in AIR 1991 SC 2219 (State of Punjab v. Gurudev Singh Ashok Kumar), it has been observed that an order which may be void is required to be avoided within the period of limitation by declaration that it is void. Supreme Court was dealing with a case where an order of dismissal, which was void and became operative immediately on passing of the order, was sought to be avoided long after the period of limitation. It relied upon a passage from Administrative Law by Prof. Wade observing :
"The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another."
Extracting this passage, Supreme Court in paragraph 8 of its judgment observed :
"It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."
13. As has been held in AIR 1963 SC 647 ('State of Orissa v. Sudhansu Sekhar Misra and Ors.), a decision is an authority for what it decides. Accordingly, the ratio of the decision in AIR 1991 SC 2219 (supra) is applicable to an order which becomes effective in present. This principle would not be applicable where the order or a document has ex facie no de facto operation. Whenever the same is sought to be relied upon, it can be ignored being void. A decree passed on compromise, however, operates in presenti. Therefore, it is to be voided. Since there is a bar of suit under Order 23, Rule 3-A, C.P.C, a party cannot be made remediless. An appeal would, therefore, lie where a party claims that he had either no consent or the consent was not voluntary. Since a remedy is available, Court would not exercise the inherent power to set aside the decree.
14. There may be cases where an order recording compromise was obtained from the Court by practising fraud on it or on account of mistake of the Court. No party should suffer in any such situations. Court can exercise the power Under Section 151, CP C without leaving the party to prefer an appeal to avoid the decree based on mistake of Court or fraud on Court in making the order recording compromise. Once the order is recalled, basis of the. decree vanishes and decree also stands recalled.
15. In the present case, there is no assertion or material that there was mistake of the Court or fraud on the Court. Accordingly, trial Court has rightly refused to exercise inherent power to set aside the the decree based on compromise. Petitioner, however, is not remediless since she can prefer an appeal.
16. It is submitted that an appeal is to be filed within the period of limitation and the petitioner could come to know that the suit had been decreed on consent which she had not given much later. Apart from the fact that law was not settled as to whether an appeal would lie in such circumstance and even senior Advocates of standing are likely to have divergent views, she was advised to file an application Under Section 151, CPC In such circumstances, appellate Court is not helpless in considering whether she came to know about the absence of the consent much beyond the period of limitation provided for an appeal and pursued the matter in a forum having no jurisdiction. If an appeal is filed and the appellate Court is satisfied that it has jurisdiction to condone the delay, it would entertain the appeal and consider the same on its own merits.
17. In result, subject to the aforesaid observations the Civil Revision is dismissed as without any merit. No costs.