Madhya Pradesh High Court
Smt. Pratibhadevi vs Pankaj on 19 September, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
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C.R. No. 44/2019
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
Civil Revision No.44 of 2019
Smt. Pratibhadevi & others. ...Petitioners.
Vs.
Pankaj S/o. Babulal Upadhyaya. ...Respondents
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Shri D.S. Kale, Advocate for petitioners.
Shri Anuj Bhargava, Advocate for respondent.
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ORDER
(Passed on 19th September, 2019) The petitioners/defendants have filed the present revision u/s. 115 of the C.P.C. against order dated 10.10.2018 passed by 3rd Civil Judge, Class-I, Mhow, District Indore in Civil Suit No.40-A/2017, whereby application under Order VII Rule 11 read with Section 151 of C.P.C. has been rejected.
2. Facts of the case necessary for disposal of this revision are as under :
(i) Late Chhitarmal who was head of the family, had two sons viz. Surajmal and Gulabchand and one daughter - Jamnabai.
Jamnabai had one son - Pankaj (present respondent/plaintiff) and a daughter Smt. Pratibhadevi (Petitioner No.1). The present petitioners/defendants No.2 to 8 and a daughter Smt. Pratibah Devi (Petitioner No.1) are legal heirs of Late Gulabchand. Surajmal died issueless. In order to explain the above relationship between the parties, the family-tree is reproduced below :
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Chhitarmal |
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| | |
Surajmal Gulabchand Jamnabai
(Died issueless) | |
| ---------------------------------
| | |
| Pankaj Upadhyaya Smt. Pratibhadevi
| (Plaintiff) (Def. No.1)
|
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| | | | | | | Kunjbihari Kailash Shambhu Surendra Mahendra Smt. Urmila Smt. Ramabai (Def.No.2) (Def.No.3) (Def.No.4) (Def.No.5) (Def.No.6) (Def.No.7) (Def.No.8)
(ii) Late Chhitarmal owned the property viz. House Nos. 1453, Kayastha Mohalla, Mhow; House No.1553/1/2, Dhanjisha Marg, Mhow; House Nos. 1662 & 1666, M. Gandhi Marg, Mhow; and House No.2297, Luniapura, Mhow, District Indore. Gulabchand purchased the property in question from Chhitarmal vide registered sale-deed 30.3.1962. After the death of Chhitarmal, his another son Surajmal and daughter Jamnabai filed Civil Suit No.87-A/1962 against Gulabchand seeking declaration of the aforesaid sale-deed as void on the ground that the same was executed without consideration and by playing fraud. The said suit was decreed in favour of Surajmal and Jamnabai.
(iii) Being aggrieved by the aforesaid judgment and decree, Gulabchand preferred first appeal and vide judgment and decree dated 6.8.1984, said appeal was allowed. Being aggrieved by dismissal of appeal, Gulabchand preferred Second Appeal No.402/1984 before this Court. Respondent/plaintiff executed a Power of Attorney in favour of Pratibhadevi D/o. Jamnabai.
During pendency of the Second Appeal, a compromise was arrived at between the parties and the same was filed on 10.3.2005 before this Court. Vide order dated 4.4.2005, the
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C.R. No. 44/2019Second Appeal has been disposed of in terms of the compromise. As per compromise, petitioner No.1 and respondents have withdrawn the civil suit and the judgment & decree passed by Civil Judge and affirmed by Additional District Judge have been set aside.
(iv) In the year 1983, Gulabchand also filed a Civil Suit No.13-
A/1983 in the Court of Addl. District Judge, Mhow seeking partition of the joint family property. On 28.1.2005, the parties disclosed the fact that the talks of compromise are going on. Later on, the suit was dismissed on 23.7.2005 due to non- appearance of the plaintiffs i.e. the legal heirs of Gulabchand.
(v) After almost 10 years of the disposal of aforesaid Second Appeal, the respondent preferred Review Petition No.195/2015 before this Court along with an application for condonation of delay of 10 years, 2 months and 4 days i.e. 3725 days. Vide order dated 25.1.2016, the Division Bench of this Court has dismissed the review petition and it has been observed that "Otherwise also if the second appeal is got dismissed by playing fraud with the applicant as well as Court, then remedy is not available in the review petition." Thereafter, the respondent preferred SLP No.6350/2016 before the apex Court and that too has also been dismissed vide order dated 11.4.2016.
(vi) Now, the respondent/plaintiff has filed the present civil suit for the relief of declaration and permanent injunction on the ground that he had never executed the Power of Attorney in favour of Pratibhadevi i.e. present petitioner No.1 and she has entered into compromise with the defendants and played fraud with the High Court, hence, the judgment dated 4.4.2005 is not
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C.R. No. 44/2019binding on him and the second appeal be restored.
(vii) The present petitioners being defendants No.1 to 8 appeared in the civil suit and filed an application under Order 7 Rule 11 read with Section 151 of C.P.C. for rejection of the plaint on the ground that the suit is barred under the principles of res judicata.
(viii) The respondent/plaintiff opposed the application and vide order dated 10.10.2018, learned Civil Judge has rejected the application, hence the present revision before this Court.
3. Shri D.S. Kale, learned counsel appearing for the petitioners/defendants, argued that the suit filed by the respondent/plaintiff is barred by Order 23 Rule 3-A of C.P.C., which came in the Statute in the year 1977. In support of his contention, he has placed reliance over the judgment passed by the apex Court in the case of R. Rajanna V/s. S.R. Venkataswamy : AIR 2015 SC 706 in which it has been held that a separate suit is not maintainable and the party aggrieved has to approach the same Court which accepted the compromise. The respondent/plaintiff has already taken the said recourse by filing review petition and the SLP and having been unsuccessful, he has filed the present suit, which is not maintainable.
4. Shri Kale, learned counsel for the petitioners, has further placed reliance over the judgment of this Court in the case of Jagdish Chandra Gupta V/s. Madanlal : 2019 (1) RN 323 and judgment of apex Court in the case of Pushpa Devi Bhagat V/s. Rajinder Singh : (2006) 5 SCC 566, in which, it has been held that in case of consent decree, no appeal is maintainable by virtue of power u/s. 96(3). No appeal is
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C.R. No. 44/2019maintainable against the order recording or refusing to record compromise in the light deletion of Order 43 Rule 1(m). The consent decree can only be set aside on an application made under Order 23 Rule 3 Proviso on the ground that there was no compromise. Hence, the impugned order is liable to be set aside and the plaint is liable to be rejected with costs.
5. Per contra, Shri Anuj Bhargava, learned counsel appearing for the respondent/plaintiff, emphasized that Order 23 Rule 3-A came into the CPC by way of Gazette Notification dated 10.9.1976 with an explanation that the same shall not apply to any suit or proceeding pending before the commencement of said Section. Surajmal and Jamnabai filed the civil suit in the year 1962, therefore, this amendment shall not apply to present suit also. He further argued that even otherwise, under Order 23 Rule 3-A of C.P.C., no suit shall lie to set aside the decree on the ground that the compromise was not lawful on which the decree is based, but the suit is maintainable where the decree is challenged on the ground of fraud, hence the learned trial Court has rightly rejected the application and held that the suit is maintainable. In support of his contention, he has placed reliance over the judgment of apex Court in the case of Ved Pal V/s. Prem Devi : (2018) 9 SCC 496, in which, it has been held that Order 23 Rule 3-A indicates the legislative intent not to leave parties to take recourse of legal proceedings questioning the compromise decree, but an exception has been carved out to file a suit on the ground of fraud where the consent obtained by playing fraud and under such circumstances, the suit would be maintainable. He has also placed reliance over the judgment of
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apex Court in the case of Badam V/s. Bhali : (2012) 11 SCC
574.
6. Shri Bhargava, learned counsel for the respondent/plaintiff further submitted that the application filed under Order 7 Rule 11(d) is liable to be considered on the basis of averments made in the plaint and not on the objection taken in the written statement by the defendants. The contention raised for rejection of the plaint and suit involve various questions which cannot be considered at the stage of proceedings under Order 7 Rule 11(d), hence the rejection of plaint is not proper. The revision is, therefore, liable to be dismissed.
7. I have heard learned counsel appearing for the parties and perused the material available on record.
8. Jamnabai and Surajmal filed the Civil Suit No.87-
A/1962 challenging the validity of sale-deed dated 30.3.1962 executed by Chhitarmal in favour of Gulabchand. Vide judgment and decree dated 27.9.1983 the suit was decreed and the sale- deed was declared as void. Gulabchand filed first appeal before the Addl. District Judge and vide judgment and decree dated 6.8.1984, the said appeal was allowed. Thereafter, legal heirs of Jamnabai (i.e. petitioner No.1 and respondents) filed S.A. No.402/1984 before this Court. By that time, Surajmal, Gulabchand and Babulal all have expired. Surjamal died issueless. Respondent No.1 - Pratibhadevi and respondents/plaintiffs were brought on record as legal heir of Jamnabai. Respondent/plaintiff at the relevant time was residing in Jhalawad, Rajasthan and he was not in a position to attend the proceedings, therefore, he executed the Power of Attorney in
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C.R. No. 44/2019favour of Pratibhadevi. In the year 1983, Gulabchand also filed the suit for partition because the sale-deed dated 30.3.1962 had already been declared void by the trial Court. The said suit remained pending up to the year 2005. Meanwhile, the first appeal filed by Gulabchand has been allowed meaning thereby that the sale-deed dated 30.3.1962 has come into force. The legal heirs of Gulabchand filed S.A. No.402/1984 before this Court. On 10.3.2005, a compromise deed was filed before this Court, whereby Pratibhadevi herself and as Power of Attorney holder of respondent/plaintiff decided to withdraw the Civil Suit No.87A/1962. In the compromise deed it is also mentioned that one Civil Suit No.13-A/1983 is pending in the Court of Additional District Judge and now, the respondent in the second appeal has decided to withdraw the said suit also. The application was prepared and filed on 10.3.2005 and on 28.1.2005, in Civil Suit No.13-a/1983, all the parties jointly submitted that the compromise talks are going on and they sought an adjournment for filing the compromise deed. On the next date of hearing, i.e. 23.3.2005, the plaintiffs did not appear and got the suit dismissed. The Second Appeal came up for hearing on 4.4.2005 and the same was disposed of by setting aside the judgment and decree dated 27.9.1983 and dismissed the civil suit No.87-A/1962 on the terms of compromise.
9. From the aforesaid facts, it is clear that in the month of January, 2005, talks of compromise were started and thereafter, compromise deed was executed in March, 2005. The present petitioners got dismissed the Civil Suit No. 13-A/1983 on 23.3.2005 and the legal heirs of Jamnabai i.e. Pankaj and
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Pratibhadevi got dismissed their Civil Suit No.87-A/1962 in the month of April, 2005.
10. The Power of Attorney was executed by the respondent/plaintiff in favour of his sister Pratibhadevi on 29.12.2005 at Bhawanimandi, Rajasthan. After almost period of 10 years, the respondent/plaintiff filed the civil suit on the ground that he did not execute any Power of Attorney in favour of Pratibhadevi and alleged that she has wrongly withdrawn the suit against his interest, therefore, the second appeal be restored.
Vide order dated 25.1.2016, the Division Bench of this Court has dismissed the Review Petition on the ground of limitation. The Division Bench has also observed that it is very strange that for more than 10 years, review petitioner/respondent could not find out the status of the appeal and has not made any contact with his counsel during this period. Thereafter, the respondent/plaintiff preferred the SLP which too has been dismissed by the apex Court. Therefore, the judgment dated 4.4.2005 has attained finality.
11. The apex Court in the case of R. Rajanna (supra) in the similar facts and circumstances has dismissed the suit which was filed challenging the compromise decree and held that no sooner a question relating to lawfulness is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. Para 10 and 11 of the aforesaid judgment are reproduced below :
"10. It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised,
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shall decide the same. What is important is that in terms of Explanation to Order XXIII Rule 3, the agreement or compromise shall not be deemed to be lawful within meaning of the said rule if the same is void or voidable under Indian Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order XXIII Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII Rule 3A of CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No.5326 of 2005 to challenge validity of the compromise decree, the Court before whom the suit came up rejected the plaint under Order VII Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order XXIII Rule 3A of the CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No.5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher Court.
11. The upshot of the above discussion is that the High Court fell in a palpable error in directing the plaintiff to take recourse to the remedy by way of separate suit. The High Court in the process remained oblivious of the provisions of Order XXIII Rules 3 and 3A of the CPC as also orders passed by the City Civil Court rejecting the plaint in which the Trial Court had not only placed reliance upon Order XXIII Rule 3A but also the decision of the Court in Pushpa Devi's case (supra) holding that a separate suit was not maintainable and that the only remedy available to the aggrieved party was to approach the Court which had passed the compromise decree. The following passage from the decision of Pushpa Devi (supra) case is, in this regard, apposite:
"17. ..Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the
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consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8- 2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code."
12. This Court in the case of Jagdish Chandra Gupta (supra) has held that Order 23 Rule 3-A and Order 41 Rule 1- A(2) are applicable only to those persons who are party in the suit as well as compromise, but the person who is not party in the decree based on compromise can alone institute a suit seeking declaration that the decree passed on the basis of compromise is void and not binding on him.
13. The apex Court in the case of Banwarilal V/s. Smt. Chando Devi : AIR 1993 SC 1139 has held that the Amending Act introduced a Proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, the Court shall decide the question, the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise, such party challenging the compromise can file a petition under Proviso to Rule 3 of Order 23 or appeal u/s. 96(1) of the C.P.C. in which he can question the validity of the compromise in view of Rule 1-A of Order 43 of the Code. Para 13 and 14 of the aforesaid judgment are
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C.R. No. 44/2019reproduced below :
"13. When the amending Act introduced a proviso along with an explanation to Rule 3 of O. 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act ......" shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R. 1(m) of O. 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to R. 3 of O. 23, or an appeal under S. 96(1) of the Code, in which he can now question the validity of the compromise in view of R. I A of O. 43 of the Code.
14. The application for exercise of power under proviso to R. 3 of O. 23 can be labelled under S. 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to R. 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under S. 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Smt. Tara Bai v. V. S. Krishnaswamy Rao, AIR 1985 Kar 270; S. G. Thimmappa v. T. Anantha, AIR 1986 Kar 1, Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, AIR 1958 Pat 618; Mangal Mahton v. Behari Mahton, AIR 1964 Pat 483 and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw, AIR 1982 Cal 12, where it has been held that application under S. 151 of the Code is maintainable. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to R. 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27-2-1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of R. 3, there was no option left except to recall that order."
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C.R. No. 44/201914. The contention of the respondent/plaintiff in the suit is that the compromise on which the decree is based was not lawful because he did not execute the Power of Attorney. In this suit he is not seeking the relief of declaration that the Power of Attorney be declared void and not binding on him on the ground of fraud. He is only seeking declaration that the judgment and decree passed in the Second Appeal be declared void and not binding on him and decree passed in the civil suit be restored.
The pleadings in respect of Power of Attorney as forged is very vague in nature. During the course of argument, Shri Anuj Bhargava, learned counsel appearing for respondent/plaintiff has admitted that even the respondent/plaintiff did not sign the Vakalatnama in the Second Appeal. He did not appear despite service of notice and only present petitioner No.1 - Pratibhadevi was contesting the Second Appeal. The respondent/plaintiff has already taken the recourse of law by way of Review Petition on the same ground but the same has been dismissed and same has also been affirmed by the apex Court by dismissing the SLP.
15. In view of the above and in the light of law laid down by the apex Court in the case of R. Rajanna (supra), once he has filed the Review Petition and the same has been dismissed, he cannot be permitted to file civil suit on the same grounds. Accordingly, the impugned order is liable to be set aside.
16. So far as the contention of Shri Bhargav that as per Section 97(2)(s) the amendment as well as substitution made in Order XXIII shall not apply to any suit or proceeding pending before the commencement of Section 74 of the CPC (Amendment) Act 1976 is concerned, by way of above
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C.R. No. 44/2019amendment in Order XXII Rule 3A, no suit shall lie to set aside a decree based on unlawful compromise after 9 th September, 1976 but the plaintiff has filed the suit in the year 2015. The Repeal & saving under Section 97(2)(s) is applicable to the suit filed challenging compromise decree prior to 9 th September, 1976
17. Consequently, this revision is allowed and the impugned order dated 10.10.2018 passed by 3 rd Civil Judge, Class-I, Mhow is set aside. Learned trial Court is directed to reject the plaint under Order 7 Rule 11 of C.P.C.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2019.09.21 16:14:50 +05'30'