Delhi District Court
This Order Of Mine Shall Decide The ... vs Abdul Hafiz on 12 February, 2015
IN THE COURT OF SH. PRANJAL ANEJA, LD. CIVIL JUDGE-06/
CENTRAL
TIS HAZARI COURTS, DELHI
Suit. No. 676/14 12.02.2015
KRISHNA DEVI DHAWAN V. ABDUL HAFIZ
ORDER
1. This order of mine shall decide the application u/o VII rule 11
(a) and (d) CPC r/w Order XXIII rule 3A CPC dt. 15.3.2010 filed on behalf of the defendant.
2. It is stated in the application that the present suit is barred u/o XXIII rule 3A CPC which states that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. It is contended that the compromise arrived between the parties has been substantially implemented whereby civil suit No. 246/05 filed by the applicant was disposed of and the complaint against the sons of the applicant was withdrawn and proceedings before Slum Authority was also dismissed and therefore, the plaintiff is bound by the said compromise decree dt. 26.5.05 and cannot be allowed to aver that some undue pressure and coercion was applied by the applicant and the plaintiffs were compelled to enter into that compromise.
3. It is further stated in the application that the suit is barred by limitation as it has been preferred after a lapse of more than five Suit. No. 676/14 Page No. 1 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 years and that too after accepting and implementing the main terms of the compromise deed. As per Article 59 of Limitation Act, 1963, the limitation period is 3 years from the date of knowledge of the decree, which in the present case is 26.5.05. That even otherwise since the compromise the plaintiffs have not instituted any proceedings to challenge its validity. That the plaint is liable to be rejected as it is barred u/s 41 of Specific Relief Act, 1963 since the plaintiffs have concealed the relevant and necessary facts that they had entered into compromise and implemented its terms and conditions. That the allegations made in the plaint do not give any cause of action to the plaintiffs.
4. In reply, it is contended that the bar of Order 23 rule 3A is not attracted in the present case as it is settled principle of law that when a decree has been obtained by fraud or coercive means, the same can be set aside and a bare perusal of compromise application shows that it was completely in favour of the defendant and therefore, the application is liable to be dismissed also in light of explanation to Order 23 rule 3 CPC.
5. With regard to limitation, it is contended that the plaintiff has sufficient ground to establish that the delay in moving the present case for challenging the decree is neither intentional nor deliberate but due to bonafide reason that within the prescribed period of three years, they started approaching the Legal Cell to avail the services Suit. No. 676/14 Page No. 2 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 of Legal Aid but as the same could not be availed being objected to recently, they have been forced to engage counsel at their own expense and to file the present case due to the continuous threats of enforcement of the decree obtained by fraud and hence, the plea of time barred stands nowhere and is liable to be considered in reply of Legal Aid Services. The plaintiffs, within the limitation period, had started the process of challenging the decree dt. 26.5.05 but inspite of their sincere efforts they could not get response from Legal Aid. The disposal of the complaint and the proceedings before the Slum Authority are not denied. Remaining averments of the application are denied.
6. Briefly, the facts of the case as per the plaint are that the defendant herein had filed one civil suit No. 246/05 against the plaintiffs herein, in which an application for compromise was filed but later withdrawn and thereafter again an application dt. 26.5.05 u/o 23 rule 3 CPC was moved for compromise upon which the statements of the parties were recorded and the matter was disposed of as compromised. It has been alleged in the plaint that the plaintiffs herein were moot spectators in the said case and were under pressure and threat of death from the side of defendant. It is also alleged that the residence of the plaintiffs is in an area wherein their family is a single Hindu family and the remaining residents belong to Muslim community and therefore, there was direct threat. Further alleged in the plaint that a bare look of terms and conditions Suit. No. 676/14 Page No. 3 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 of the compromise would show that there is nothing in favour of the plaintiffs herein. That no change was made to the application upon which compromise decree was obtained despite directions of the Court vide order dt. 21.5.05. The plaintiffs have contended that the defendant herein has now started pressurizing them to transfer the property under his occupation and to adjust Rs. 50,000/- in sale consideration as agreed at the time of said compromise. But the plaintiffs requested the defendant that they are not intending to dispose of the shop but there is continuous pressure from the side of defendant to transfer the shop at the price of his choice. That the defendant has started spreading rumour in the public that a sum of Rs. 1 lac has been finalized as the deal of the tenanted shop under his occupation and Rs. 50,000 as mentioned in the compromise have to be adjusted in the sale price and after payment of the remaining 50,000 he would become owner of the shop. It has been prayed to declare the compromise dt. 26.5.05 recorded in civil suit No. 246/05 as null and void being obtained through the use of force, coercion and undue influence and also to restrain the defendant by way of permanent injunction from enforcing the said compromise decree.
7. I have heard the arguments and perused the record.
8. It is settled proposition of law that in dealing with an application u/o 7 rule 11 CPC, the averments of the plaint and its documents have only to be seen. Firstly, dealing with the point of Suit. No. 676/14 Page No. 4 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 limitation, it is seen that the compromise decree passed in CS No. 246/05 which is sought to be declared null and void was passed on 26.5.05 and the present suit has been filed on 23.12.09 i.e. after a gap of about four and half years. The ground raised in the plaint is that plaintiffs were merely moot spectators in the said CS No. 246/05 and were under pressure and coercion to enter into the compromise. It clearly implies that the plaintiffs had full knowledge of the alleged pressure and coercion being exercised upon them as on the date of compromise/ decree and even prior thereto. Thus, the plaintiffs ought to have filed the present suit for declaration of that compromise decree within the stipulated time period of three years as per Article 59 of Limitation Act which states that the time period begins to run when the facts entitling the plaintiff to have the decree cancelled or set aside or the contract rescinded first became known to him. In the given facts of the case in hand, as observed the plaintiffs were well aware of the pressure or coercion on the date of the compromise decree and therefore, time period of three years begins to run from the date of compromise decree i.e. 26.5.05. The plaintiffs have contended in their reply to the present application that they had started the process of challenging the said compromise decree as within the prescribed period they started approaching the Legal Cell to avail the services of Legal Aid but they could not get any response from the Legal Aid and therefore they were forced to engage a counsel for filing the present suit. The Limitation Act, 1963 provides certain grounds for condonation of delay u/s 5 only in Suit. No. 676/14 Page No. 5 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 cases of applications, but there is no condonation of delay in cases of filing of the suit. The reason that plaintiffs had approached Legal Cell within the prescribed period cannot sustain as approaching Legal Cell or Legal Aid cannot be equated with the filing of a civil suit and cannot at all give any extension of time to the plaintiffs. It is nowhere stipulated in the entire Act that the plaintiff would get the extension of time period if he approaches the Legal Aid or the Legal Cell. Furthermore, the plaintiffs cannot also get the benefit of section 17 of the Limitation Act since they were having knowledge about the pressure or coercion on the very date of the compromise decree itself. It is further noted that no particular date has been disclosed in para 8 of the plaint that when the defendant started pressurizing the plaintiffs to transfer the property. The same even does not assume importance for the purpose of limitation as the plaintiffs had knowledge about the pressure and coercion being exerted upon them during the pendency of the said CS No. 246/05 and even on the date of passing of the compromise decree in it. Thus, the present suit is patently barred by time.
9. Now coming to the point of Order 23 rule 3A CPC, it is contended in the application that this provision specifically bars the filing of any suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The defendant in the present application also contends that the plaintiffs have acted upon the said compromise decree by withdrawing the Suit. No. 676/14 Page No. 6 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 complaint against the sons of the defendant/ applicant and the proceedings before slum authority were also dismissed. This is not disputed by the plaintiffs.
10. It has been contended from the side of plaintiffs that bare reading of the compromise would show that there is nothing in their favour and even upon a previous compromise application moved on behalf of defendant herein (plaintiff in that suit CS No. 246/05), the Hon'ble Court was not satisfied with its terms and conditions to be lawful and therefore, that application was withdrawn and another application was filed containing the same terms upon which the statements of the parties were recorded and the suit was disposed of as compromised.
11. The purpose of introducing this provision by way of 1976 amendment was to bring about finality of litigation to resolve the conflict of decisions on the questions whether validity of a decree can be challenged on the ground of illegality of the compromise on which it is based. This rule 3A clearly bars the filing of suit for setting aside or canceling a compromise decree on the ground of fraud, misrepresentation, coercion etc. After passing of this amendment, the only forum left to the aggrieved party is the Court which passed such decree on the basis of compromise and no independent suit can be filed. In Durga Prasad Tandon V. Gaur Brahman Sabha, Zila Nainital, 2001 AIHC 3402 (All.), it has been Suit. No. 676/14 Page No. 7 of 8 Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015 held that the remedy opened to the aggrieved party is to file appeal u/o 43 rule 1A CPC. In Gopal Lal V. Babu Lal AIR 2004 Raj. 264, it was observed that a suit challenging the compromise decree is completely barred under this provision and the law, however, provides two modes to challenge, the first remedy is proviso to rule 3 of Order 23 CPC wherein a party can question the compromise before the same Court, and the second remedy lies in filing an appeal u/s 96 (1) CPC. Thus, in view of the above noted authorities, the present suit is barred by virtue of provision as contained in Order 23 rule 3A CPC. Plaintiffs have relied upon upon A. V. Papayya Sastry V. Govt. of A. P. & Ors. (2007) 4 SCC 221 but this reliance is misplaced as this case is distinguishable from the case in hand, the decree challenged is compromise decree.
12. The applicant/ defendant has not elaborated to show that the plaint does not disclose any cause of action.
13. As observed in the above discussion, the suit is barred by law of limitation as well as Order 23 rule 3A CPC, consequently, the plaint is rejected u/o VII rule 11 (d) CPC. In the circumstances, no order as to costs. File be consigned to record room.
Announced in open Court (PRANJAL ANEJA)
on 12.02.2015 CIVIL JUDGE-06, CENTRAL
THC/DELHI/12.02.2015
Suit. No. 676/14 Page No. 8 of 8
Krishna Devi Dhawan V. Abdul Hafiz On 12th February, 2015