Punjab-Haryana High Court
Ajit Inder Singh vs Kuldip Kaur And Ors. on 31 May, 1993
Equivalent citations: (1994)106PLR199, 1995 A I H C 298, 1993 PUNJ LJ 771, (1994) 1 RENTLR 307, (1994) 1 PUN LR 199, (1994) 1 CIVILCOURTC 680, 1993 HRR 423, (1994) 1 LANDLR 22, (1994) 1 RRR 744, 1994 REVLR 1 153
JUDGMENT A.S. Nehra, J.
1. This application under Order 41 Rule 1 read with Section 151, Code of Civil Procedure, has been filed by Ajit Inder Singh for reviewing the order dated 21.2.1992 passed by me in Civil Revision No. 2955 of 1991.
2. Briefly stated, the facts of the case are as under:-
The applicant filed an application under Section 151 of the Code of Civil Procedure in the Court of Sub Judge Ist Class, Patiala, for restoration of the suit which was dismissed as withdrawn on 18.5.1982.
Pritam Singh and Ajit I rider Singh applicant filed a suit for prohibitory injunction restraining Smt. Kuldip Kaur and others, defendants-respondents, from interfering with their possession in respect of the suit land. During the pendency of the suit, the matter was compromised and compromise-deed Exhibit C-I was filed, which reads :-
"Compromise Deed:
Sir, The parties submit as under:-
1. That the aforesaid case is pending in this court and is fixed for 18.5.1982 for further proceedings.
2. That the plaintiffs and the defendants are related to each other and the matter has been compromised on the intervention of other relations and respectables.
3. That Surjit Singh defendant is the owner of plot bearing Khasra No. 495/1/2 measuring 600 sq. yards. Harinder Kaur defendant is the owner of plot bearing Khasra No. 495/1/2 measuring 560 sq. yards; Birinder Kaur defendant is the owner of plot bearing Khasra No. 495/1/2 measuring 583 sq. yards and Smt. Kuldip Kaur defendant is the owner of plot bearing Khasra No. 495/1/2 measuring 600 sq. yards. All these plots along with another plot of Smt. Satwant Kaur measuring 582 sq. yards are continuous to each other and have a common boundary Wall.
4. That the plaintiffs were in possession on the plots of Surjit Singh, Harinder Kaur, Birinder Kaur and Kuldip Kaur, defendants. The defendants have agreed to transfer the ownership of plot owned by Smt. Birinder Kaur defendant, measuring 583 sq. yards and, as a result of it, the plaintiffs have delivered the possession of the respective plots owned by Surjit Singh, Smt. Harinder Kaur and Kuldip Kaur, defendants, to them. The plaintiffs have now no connection with the respective plots of Shri Surjit Singh, Smt. Harinder Kaur and Kuldip Kaur, defendants, as they are owners and now in possession of their respective plots.
5. That Smt, Birinder Kaur defendant will get the sale-deed of the plot valued Rs, 40,000/- executed in favour of the plaintiffs today in consideration of the plaintiffs having relinquished the possession with regard to the plots of Shri Surjit Singh, Harinder Kaur and Kuldip Kaur. The plot of Smt. Birinder Kaur adjoins the plot of Balbir Singh Qanungo,
6. That Smt. Barinder Kaur has already been compensated by the defendants with regard to the plot owned by her
7. As the plaintiffs are now not in possession of the plots owned by Shri Surjit Singh, Harinder Kaur and Smt. Kuldip Kaur, defendants, therefore, their suit against the said defendants has become infructuous.
It is, therefore, prayed that the suit of the plaintiffs be dismissed as infructuous against the defendants, as the defendants are in possession of the suit land as owners thereof."
Ajit Inder Singh made a statement before the learned Sub Judge' on 18.5.1982, stating that the parties have compromised that Exhibit C-l is the compromise; that, accordingly; Birinder Kaur had sold her plot measuring 583 square yards; as per terms of the compromises (Exhibit G-l); that plaintiff has become the owner and in possession qua 583 square yards mentioned above, while the plaintiff had delivered possession of the plots of Surjit Singh, Harinder Kaur, and Smt. Kuldip Kaur to them; that the plaintiff had no connection now with the possession of the said plots, except 583 square yards mentioned above; and that the suit of the plaintiff has become infructuous and be decided accordingly.
3. The learned Sub Judge on 18.5.1982 passed the following order:
"Present:-Ajit Singh on behalf of himself and Attorney of Pritam Singh plaintiff and M.L. Gupta, counsel for the plaintiff, and Shri B.S. Janda, counsel for the defendant. When this case came up for hearing today, the 18th May, 1982, the parties have compromised and have filed compromise-deed Exhibit C-l. According to the terms of the compromise-deed Exhibit C-l and statements of Ajit Inder Singh and counsel for the parties, the suit of the plaintiff is dismissed as withdrawn with no order as to costs. The file be consigned to records. Sd/-Judge Ist Class, Patiala."
4. Birinder Kaur filed a suit against Ajit Inder singh on 19.2.1983 in the Court of Additional Senior Sub Judge, Patiala, for possession. In the civil suit, the case of Birinder Kaur plaintiff was that there was a dispute regarding the ownership Of the plot, in dispute, regarding which Pritam Singh and Ajit Inder Singh filed a suit against Kuldip Kaur and others, including Barinder Kaur. In the said suit, a compromise was effected and the suit was dismissed as withdrawn. According to her, in view of the compromise, Surjit Singh, Harinder Kaur and Kuldip Kaur were to give a plot to her and she was to sell the plot, in dispute, for a sum of Rs. 40,000/- to Ajit Inder Singh and Harinder Kaur and Kuldip Kaur refused to give the plot. It was further alleged that she in good faith executed the sale-deed in favour of Ajit Inder Singh and she was to receive Rs. 40,000/- as sale price before the Sub Registrar. It was further alleged that Ajit Inder Singh had no money to pay and, consequently, the Sub Registrar refused to register the sale-deed that the amount be paid to her in the house. She further alleged that she had come to know that the recital in the sale-deed that she had already received the money, has been incorporated instead of writing the correct recital that the amount was to be paid in the house. It was further alleged that she was paid nothing before the sale nor any amount was paid to her till that day. The suit filed by her was dismissed on 22.5.1987. The appeal filed by her (Barinder Kaur) was partly allowed on 23.8.1988 by the Additional District Judge, Patiala. While deciding the appeal of Birinder Kaur against Ajit Inder Singh, the learned Additional District Judge, Patiala, held:
"As per compromise Exhibit P-3, the consideration for Birinder Kaur for the sale of this plot was to be the relinquishment of possession of the plots of Surjit Singh; Harinder Kaur and Kuldip Kaur by Pritam Singh and Ajit Inder Singh and they gave up possession of the plots of Surjit Singh, Harinder Kaur and Kuldip Kaur and put them in possession as owners. Nothing has been brought on the record by defendant Ajit Inder Singh to show that this was the consideration for Birinder Kaur for this plot agreed to between Surjit Singh, Harinder Kaur and Kuldip Kaur- In Clause 6 of agreement Exhibit P-3 dated 18,5,1982, the recital is that Smt. Birinder Kaur has already been compensated by Kuldip Kaur etc with regard to the plot owned by her. Nothing has been brought on the record by Ajit Inder Singh that this was the manner in which Birinder Kaur had been compensated by Kuldip Kaur etc. with regard to the plot, in dispute. There is no proof by Ajit Inder Singh that for giving up the plot, in dispute, in his favour, what was the consideration for Birinder Kaur. In the instant suit, Birinder Kaur has alleged that she sold this plot for a sum of Rs. 40000/- to Ajit Inder Singh but the said consideration was never paid to her and it was wrongly got recited in the sale deed that the consideration has been paid to her at home, Ajit Inder Singh refuted her plea saying that he purchased this plot from Birinder Kaur for Rs. 40000/- and this consideration had been paid to her at home. It is thus clear that Ajit Inder Singh fought this suit on the plea that he purchased this plot from Birinder Kaur for a consideration of Rs. 40,000/- which he had duly paid to her at home. This plea of Ajit Inder Singh is absolutely untenable. In sale-deed Exhibit PW-2/A initially the recital was that the payment of Rs. 40,000/- would be made in the presence of the Sub Registrar. Ajit Inder Singh did not have Rs. 40,000/- with him for being paid to Birinder Kaur in the presence of the Sub Registrar. Shri Surinder Mohan Sharma (FW-2), who was Sub Registrar, Patiala, on 18.5.1982 stated that this sale deed was first laid before him when the recital was that the payment would be made in the presence of the Sub Registrar. Ajit Inder Singh had no money to pay and, therefore, he suggested to Ajit Inder Singh and Birinder Kaur to get the recital amended and they again appeared before him after the recital had been got amended. At first, the recital was that Rs. 40,000/- would be paid in the presence of the Sub Registrar and the recital, after amendment, was that she had already received Rs. 40,000/-. There is no evidence that Ajit Inder Singh had paid Rs. 40,000/- to Birinder Kaur prior to 18.5.1982. If Ajit Inder Singh had paid Rs, 40,000/- to Birinder Kaur prior to 18.5.1982, there would have been recital to this effect in the very beginning that she had received the entire sale consideration of Rs. 40,000/- at home and that she would receive nothing in the presence of the Sub Registrar. If Rs. 40,000/- is taken to have been paid to Birinder Kaur on 18.5.1982, what was the hitch that this payment could not be made before the Sub Registrar. From whatever angle the matter is viewed, there is no evidence that any sum of Rs. 40,000/- was paid by the defendant to the plaintiff. Sale-deed Exhibit PW-2/A cannot, however, be struck down as the sale of the plot was for a consideration of Rs. 40,000/-. Ajit Inder Singh contended that he paid Rs. 40,000/-. Birinder Kaur contended that she never received Rs. 40,000/-. Execution of sale-deed Exhibit PW-2/A is admitted by Birinder Kaur. Her only grouse is that she was not paid the sale consideration."
5. The Additional District Judge, Patiala, partly allowed the appeal of Birinder Kaur and a decree for Rs. 40,000/- was passed in her favour. Aggrieved by the judgment and decree passed by the Additional District Judge, Patiala, on 23.8.1988, Birinder Kaur filed Regular Second Appeal No. 2721 of 1988 (Birinder Kaur v. Ajit Inder Singh) and Ajit Jnder Singh filed Regular Second Appeal No. 2594 of 1988 (Ajit Inder Singh v. Birinder Kaur). The impugned judgments and decrees dated 22.5.1987 and 23.8.1988 passed by the Additional Senior Sub Judge, Patiala, and the Additional District Judge, Patiala, respectively, were set aside by this Court and the suit for possession filed by Birinder Kaur for recovery of possession of the plot, in dispute, was decreed by this Court on 11.7.1989. while deciding the appeals, it was held by this Court:-
"It is admitted case of the parties that the plaintiffs in Civil Suit No. 370 of 1981 as also the defendants therein did not transfer to any-one much less to Barinder Kaur."
It was further held by this Court:-
"It would thus appear that, as per terms of the compromise, the vendor had already been compensated through transfer of the plots of Surjit Singh, Harinder Kaur and Kuldip Kaur in favour of the defendants and was to transfer her own plot in favour of plaintiff No, 2 in consideration of the plaintiffs relinquishing their rights in and title over the three plots of Surjit Singh, Harinder Kaur and Kuldip Kaur aforesaid. Rs. 40,000/- was fixed as value of the plot of Barinder Kaur plaintiff-appellant for purposes of its transfer through registered sale-deed. This amount was, however, not to be paid by plaintiff No. 2 (defendant-respondent) to defendant No, 5 (now plaintiff-appellant before this Court) either at the time of the execution or at the time of registration of the sale-deed because in terms of clause (6) of the compromise Exhibit P-3 Smt. Barinder Kaur had already been compensated by the defendants with regard to the plot owned by her The crux of the matter as asserted by plaintiff-appellant and admitted by defendant-respondent is that Smt. Barinder Kaur was to be given a plot in lieu of her own agreed to be sold to defendant-respondent Ajit Inder Singh out of the plots of Surjit Singh, Harinder Kaur and Kuldip Kaur, possession whereof was allegedly in terms of the recitals of the compromise, relinquished by plaintiffs in favour of defendants. Since the transfer in favour of Barinder Kaur did not come about and was never made, there was complete failure of consideration for the transfer made in favour of defendant-respondents by her through sale-deed Exhibit PW-2/A."
6. Ajit Inder Singh applicant has submitted in the application under Section 151 of the Code of Civil Procedure for restoring the suit which was dismissed on 18.5.1982 that, according to the finding of this Court, compromise Exhibit C-l has failed due to the fault of the defendants. He has further submitted that the applicant is not at fault and that, therefore, he is entitled to get his suit restored to its original number, because the compromise has not been acted upon by the defendants. He has also submitted that, in the suit, an injunction was issued against the defendants restraining them from dispossessing the plaintiffs from the land, in dispute. Reply was filed on behalf of the defendants and they have admitted in paragraph 3 of the reply that, during the pendency of the suit, an injunction was granted and thereafter the suit was decided and that the injunction, if any granted, stands automatically vacated. It has been further stated in the reply that the applicant was to pay Rs, 40,000/- as consideration for the sale of the plot measuring 583 square yards, otherwise none of the plaintiffs has right or title over the suit land. It has been further stated by the respondents that it is incorrect that the compromise failed due to the fault of the defendants. The respondents have further stated that possession of the plot of Birinder Kaur has been delivered to her in view of the judgment and decree passed by this Court and the judgment and decree passed by this Court has been upheld by the Supreme Court of India and that, therefore, the suit, which was dismissed on 18.5.l982, cannot be restored at this stage. In their reply to the application filed by Ajit Inder Singh, the respondents have not denied that Ajit Inder Singh surrendered possession of the plots to Surjit Singh, Harinder Kaur and Kuldip Kaur after filing the suit, in view of compromise Exhibit C-l.
7. Mr. Harbhagwan Singh, Senior Advocate, learned counsel for the applicant, has submitted that gross injustice has been done to Ajit Inder Singh applicant; that, in view of the compromise, the applicant surrendered possession of the plots to Surjit Singh, Harinder Kaur and Kuldip Kaur and Smt. Birinder Kaur was to be compensated by the defendants with regard to the plot owned by her; that the compromise between the parties failed since Smt. Birinder Kaur was not compensated by the other defendants with regard to the plot owned by her and that, in case the suit filed by the applicant is not restored, then he will suffer irreparable loss and gross injustice will be done to him.
8. The learned counsel for the applicant has further submitted that, in the litigation between Smt. Birinder: Kaur and Ajit Inder Singh applicant, it has not been held by the Courts that Ajit Inder Singh applicant did not surrender possession of the plots to Surjit Singh, Harinder Kaur and Kuldip Kaur; that Smt. Harinder Kaur is the mother of Smt. Birinder Kaur to whom one plot was surrendered by the applicant in view of the compromise and that, therefore, this is a fit case in which the suit filed by the applicant should be restored. The learned counsel for the applicant has further submitted that this is a fit case in which the review applicant filed by Ajit Inder Singh applicant under Order 47 Rule 1, Code of Civil Procedure, be allowed. Order 47, Rule 1, Code of Civil Procedure, reads as under:-
"Application for review of judgment:-
(1) Any person considering himself aggrieved- ,
(a) by a decree or order from which an appeal is allowed, but from which no appeal has beep preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision; on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which after the exercise of due diligence , was not within his knowledge or could hot be produced by him at the time when the decree was passed or order made, of on account of some mistake or error apparent on the face of the record, or any other sufficient reasons; desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellant Court the case on which he applies for the review.
Explanation: The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment."
9. Mr. Harbhagwan Singh, Senior Advocate, learned counsel for the applicant, in support of his argument has relied upon Shivdeo Singh and Ors. v. State of Punjab and Ors., AIR 1963 Supreme Court 1909; Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh. represented by the Deputy Commissioner of commercial Taxes, Anantapur, AIR 1964 Supreme Court 1172; Shrimati Ram Piari and Ors. v. Presm Singh, 1970 Rent Control Reporter 1112 (DB); Y. Venkannachowdary v. The Special Deputy Collector, Land Acquisition (General Hyderabad District and Ors., AIR 1981 Andhra Pradesh 232; State of Rajasthan v. Mehta Chetan Das Kishandass, AIR 1981 Rajasthan 36; and Moran Mar Dasselios Catholicos and Anr. v. The Most Rev. Mar Poulose Athanasius and Ors., AIR 1952 Travancore Cochin 120 (Full Bench).
10. It has been held by the Hon'ble Supreme Court in Shivdeo Singh's case (supra):-
" There is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it."
In M/s. Thungabhadra Industries Limited's case, (supra) it has been held:-
"There is a distinction Which is real, though it might always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where, without any elaborate argument, one could point to the error and say here is a substantial point of law which stares One in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made Out."
It was further held in M/s. Thungabhadra Industries Limited's case (supra):-
"We, therefore, consider that the learned judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed."
The Rajasthan High Court in State of Rajasthan v. M/s. Chetan Das Kishandass's case (supra) has held that a mistake or error apparent on the face of the record is a valid ground for review.
A Division Bench of this Court in Shrimati Ram Piari's case (supra) has held:-
"Thus, power of the High Court, which is a Court of plenary jurisdiction, to review an earlier order was fully recognised though this power is to be exercised either for the purpose of preventing miscarriage of justice or for correcting grave and palpable errors committed by it."
11. Mr. Sanjay Majithia, learned counsel for the respondents, has contended that the power of review is not an inherent power and a review does not lie even if the decision is erroneous. He has further contended that a Court has jurisdiction to decide a case and, therefore, the review application is not competent. In support of his argument, he has relied upon Kailash Singh Rajput v. Ram Prakash, AIR 1979 All 110; Dev Krishna and Anr. v. Dhani Ram Saligram, AIR 1959 M.P 217; Abdul Rahim v. Ghulam Mahayadi and Anr., AIR 1936 Sindh 7; Mohammad Hassan Khan v. Ahmad Hafiz Ahmad Ali Khan and Anr. AIR 1957 Nego 97; Durgadas v. Ibrahim Ali and Anr., AIR 1952 Bhopal 15.
12. After hearing the learned counsel for the parties, I am of the opinion that gross injustice has been done to Ajit Inder Singh applicant. After filing the suit and before entering into compromise Exhibit C-l, Ajit Inder Singh applicant surrendered possession of the plots to Surjit Singh, Harinder Kaur and Kuldip Kaur. Harinder Kaur is the mother of Birinder" Kaur. Birinder Kaur, who had transferred a plot through registered sale-deed in favour of the applicant, was not compensated by other defendants. Therefore, Ajit Inder Singh applicant surrendered the plot to Birinder Kaur in view of the decision of this Court in the regular second appeal. In case the review application is not allowed, Ajit Inder Singh applicant will suffer irreparable loss and injury and gross injustice will be done to him. The Division Bench judgment of this Court in Shrimati Ram Piari's case (supra) is fully applicable to the facts of the present case and, in view of the judgment of the Division Bench of this Court and the judgments of the Supreme Court in Shivdeo Singh's case (supra) and M/s. Thungabhadra Industries Limited's case (supra), the judgments cited by the learned counsel for the respondents cannot be relied upon. Therefore, Review Application No. 19-CII of 1992 is allowed and the order of this Court passed on 21.2.1992 in Civil Revision Petition No. 2955 of 1991 is recalled.
13. Mr. Harbhagwan Singh, Senior Advocate, learned counsel for the petitioner in Civil Revision Petition No. 2955 of 1991, has submitted that the Sub Judge Ist Class, Patiala, has erred in not reviving the suit of the petitioner and that, since the compromise was not acted upon by the defendants, therefore, the suit filed by the petitioner has to proceed on merits. In support of his argument, he has relied upon Mohihder v. Bakshi and Ors. (1993-1) 103 P.L.R 237, wherein it has been held by a learned Single Judge of this Court:-
"Having given my thoughtful consideration to this aspect of the case, I am of the opinion that the suit filed by Mohinder challenging mutation has got to be continued in the trial Court. A successful challenge against the compromise decree entered in a suit would not have the effect of throwing away the suit of the plaintiff on merits and, therefore, the subsequent conduct of the plaintiff in filing another suit would not mean that he is estopped from continuing with that suit in which compromise-decree was entered into and that compromise-decree has been successfully challenged by the persons who were defendants in that suit. The plaintiff, in my view, after the setting aside of the compromise-decree is definitely entitled to continue with his original suit and, therefore, the appellate Court was bound in law to direct the revival of the suit. Institution of the second suit, in my view, would not make any difference and such a suit can always be permitted to be withdrawn under Section 151 of the Code of Civil Procedure. Consequently, I permit Mohinder to withdraw R.S.A. No. 1595 of 1987 as well as Suit No. 166 of 1983 and order the trial Court to proceed with the original suit from the stage before the compromise was effected. The revival of the original suit would necessarily mean that if any injunction was granted in favour of Mohinder in that suit, the same would continue to operate during the pendency of his suit. The parties are also at liberty to apply for interim order before the trial Court."
14. After hearing the learned counsel for the parties, I find force in the contention of the learned counsel for the petitioner. Consequently, Civil Revision Petition No. 2955 of 1991 (Ajit Inder Singh v. Kuldip Kaur and Ors.) is allowed, the order dated 4.5.1991 passed by the Sub Judge Ist Class, Patiala, is set aside, and it is held that the petitioner is entitled to continue with his original suit and the trial Court is ordered to proceed with the original suit from the stage before the compromise was effected. The revival of the suit would necessarily mean that if any injunction was granted in favour of the petitioner in that suit, the same would continue to operate during the pendency of the suit. The petitioner is at liberty to apply for interim order before the trial Court. Since a long time has elapsed, therefore, the trial Court is directed to proceed with the suit expeditiously and decide it within six months from the date the parties put in appearance before it even if the case has to be fixed for hearing on day-to-day basis.
15. The parties through their learned counsel are directed to appear , before the trial Court on 19.7.1993.