Patna High Court
Maimun Nisa And Anr. vs Mohammad Khodabin And Ors. on 17 July, 1984
Equivalent citations: AIR1985PAT55, 1985(33)BLJR228, AIR 1985 PATNA 55, (1985) PAT LJR 23, 1985 BLJR 228, (1985) 2 CIVLJ 350
ORDER Birendra Prasad Sinha, J.
1. This application is directed against an order dt 5-12-1980 passed in Misc. Case No. 16/80 by 2nd Addl Subordinate Judge Sitamarhi. By this Order the learned Subordinate Judge dismissed the miscellaneous case holding that the same was not maintainable.
2. In partition suit No. 168/73 a petition of compromise was filed and the suit was ordered to be decreed in terms of the same on 10-9-1980, on 13-9-1980 these petitioners who are Pardanashin ladies filed an application stating interalia that the compromise had been obtained by practising fraud upon them. They alleged that although there was a talk of compromise between them and the opposite party, their left thumb impression was obtained on a piece of Sada paper and Vakalatnama and a petition of compromise was filed in the suit by practising fraud upon them. They interalia stated that their share in the property was more than 1.50 acres, but, they have been given only .25 acres by the alleged compromise, for which they had never agreed or consented.
3. On the basis of the said application a miscellaneous case No. 16/1980 was registered. The opposite party filed a rejoinder stating inter alia that the miscellaneous case was not maintainable either under Order 23 Rule 3 of the Civil P.C or under Section 151 of the Code. The opposite party stated that the petitioners had consented to the compromise, they had put their thumb impression on the petition of compromise and their lawyers had also signed the same. A point was raised that it might be a fraud upon the party but was not a fraud upon the Court, and, therefore, the only remedy open to the petitioners was to file a suit for setting aside the compromise decree. After hearing the parties the learned Subordinate Judge has also found that on the basis of the allegations it cannot be said that it is a fraud upon the Court and, therefore, even under its inherent jurisdiction the Court cannot entertain such application. The miscellaneous application was therefore dismissed. Hence this civil revision application by the two ladies.
4. Mr. Mishra appearing on behalf of the petitioners has submitted that in the facts and circumstances of the case it should be held to be a fraud practised upon the Court and not merely a fraud upon the party.
5. In the case of Basudeo Misir v. Mt Paudharo Kuar AIR 1934 Pat 41 it was held that where the Court accepts a compromise which is filed on behalf of Pardanashin lady but it is subsequently found that no proposal of the compromise had been made to her and that it had been brought about by practising fraud on her, the Court has power to set aside the order , accepting the compromise. What had happened in that case was that a petition of compromise had been filed which had been accepted by the Court and on the basis of which a decree had been prepared. The lady who was said to be a party to the compromise appeared and filed an application denying that she had ever consented to the compromise. This was accepted by the learned Munsif and the order accepting the compromise was recalled. In revision against that order it was held that the aggrieved party had not consented to the compromise and the Court had inherent power to set aside the order. In the case of Sheodhar Prasad Singh v. Ramdeo Prasad Singh AIR 1934 Pat 229 it was held that where consent had been obtained by practising fraud upon the parties the remedy lies by way of filing a suit and not by filing an application for recall Mr. Agrawal learned counsel for the opposite party relied upon this observation made in the above case. In that case a distinction was sought to be made between a fraud practised upon the Court and a fraud practised upon the party. In the case of fraud practised upon the Court it was held that it was always within the inherent power of the Court to correct its own proceedings but where a consent had been obtained by practising fraud upon the parties, then in that case, it was held that, the remedy was by way of a suit.
6. The question is as to whether in the facts and circumstances of this case the fraud committed by the opposite party can be said to be a fraud practised on the Court Order 23 Rule 3 of the Civil P C provides that where it is proved to the satisfaction of the Court that suit has been adjusted wholly or in part by way of a lawful agreement or compromise, the Court shall order such agreement or compromise to be recorded and shall pass a decree in terms thereof. According to this provision the Court has to be satisfied, firstly that the suit has been adjusted wholly or in part and secondly that it has been done by a lawful agreement or compromise. The question is whether an agreement or compromise can be said to be lawful if the same has been obtained by practising, fraud upon a party. If it is found that it the same has been obtained by practising fraud upon a party, it cannot be said to be a lawful agreement or compromise. In the present case although there was a talk of compromise between the parties but it is alleged that the petitioners had not consented for the terms of the compromise namely that only 25 decimal of land shall be allotted to share of the two ladies. If, therefore, a petition was filed in the Court by the opposite party bearing the left thumb impressions of the petitioners on the basis of which the Court recorded the compromise and passed the decree, it cannot be said that a fraud was' not practised upon the Court and that a fraud was played only upon the party. A fraud played upon a party may in the facts and circumstances of a particular case amount to a fraud practised upon the Court In the case of Sm. Sumitra Devi Agrawala v. Sm. Sulekha Kundu AIR 1976 Cal 196 it was held that the term of lawful agreement under Order 23 Rule 3 does not include within it an agreement which is vitiated by fraud, undue influence or coercion. In other words, it excludes such an agreement as also the agreement which, on the face of it, is void. In order to consider whether or not the agreement has been reached between the parties the Court will, of necessity embark upon an enquiry as to the allegations of a party that his consent to an agreement or his signature on the document containing the terms has been obtained by fraud, undue influence or coercion. It was held in the Calcutta case that even if it was assumed that such an enquiry into the allegations of fraud, undue influence and corecion was not permissible under Order 23 Rule 3, the Court has undoubtedly inherent power to investigate such allegations under Section 151 of the Civil P C. If it is found that any fraud has been committed upon the party and as a result of that fraud the Court was misled into passing certain orders which.
otherwise the Court would not have passed, then it must be held that a fraud has been practised upon the Court itself. In such a situation the Court must act under its inherent powers.
7. In the present case the Court below should have found on merit whether a fraud was committed upon a party and should not have dismissed the petition as being not maintainable. If it is found that the petitioners had not consente for the terms of the compromise as incorporated therein, then it has to be held that the Court was induced to record the same on false representation which shall amount to practising fraud upon the Cburt and not merely a fraud upon the party. In that case the Court should exercise its power and pass the appropriate order.
8. In the result I allow this revision and set aside the order, dt 5-12-1980 passed by the Court below. The case is remitted back to the learned Subordinate Judge who shall after hearing both the parties and taking evidence, if any, decide the question on merit and pass appropriate orders in accordance with law. There shall be no order as to costs.