Punjab-Haryana High Court
Ram Kishan And Ors. vs Smt. Sardari Devi And Ors. on 19 July, 2001
Author: Swatanter Kumar
Bench: Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Vide judgment and decree dated 21.12.1996 teamed Civil Judge (Junior Division), Jagadhri, decreed the suit of the plaintiff and held that the earlier decree dated 15.1.1986 passed in Suit No.623 of 1981 titled as Ram Kishan v. Sardari Devi was null and not binding upon the rights of Smt. Sardari Devi, and further declared her to be the owner in exclusive possession of the land in dispute. The Court also granted relief of injunction to the plaintiff. The defendant in the suit preferred an appeal and the learned first Appellate Court vide its judgment and decree dated 5.6.1999 dismissed the same. The learned first Appellate Court, while affirming the findings of facts and the view taken by the learned trial Court held as under:
"Next aspect in this case is that the Court passed the judgment and decree dated 15.1.1986 on the basis of compromise Ex.CX and the statement of the parties recorded in the Court including statement of Smt. Sardari Devi. Had Smt. Sardari Devi appeared in the Court on 15.1.1986, then why she had not put her signature on the compromise Ex.CX and why the Court had not insisted that the compromise Ex.CX should be signed by Smt. Sardari Devi which was requirement of the law. These facts assume much more importance because Smt. Sardari Devi has taken specific ple'a of misrepresentation which established on the file on the basis of these facts. So, I am of the view that the learned trial Court had rightly come to the conclusion that there are sufficient grounds to declare the judgment and decree dated 15.1.1986 to be illegal, null and void."
"Another aspect of the case is that as per recent law laid down by our Hon'ble Supreme Court in case of Bhoop Singh v. Ram Singh Major and Ors., (1996-1)112 P.L.R. 559 (S.C.) : 1996(1) Civil Court Cases 210 (S.C.), if a decree is based on the basis of written statement admitting the claim to be correct, it is not a compromise decree but it is a judgment on admission which requires compulsory registration if the decree creates right for the first time for a value of Rs. 100/- or upwards. Identical are the facts of the case in hand because the rights were created first time in the immovable property for a value of more than Rs. 100/-. So, it was not a compromise decree but it was a judgment on admission which requires compulsory registration."
2. Aggrieved from the above said judgment and decree and the concurrent findings, the defendant-appellant herein has preferred this regular second appeal.
3. The main contention raised on behalf of the appellant before this Court is that the judgment and decree dated 15.1.1986 was a decree passed on compromise entered into between the parties and as such the suit and/or the appeal before the first Appellate Court was not maintainable in law. In this regard the learned counsel for the appellant relies upon the judgments of the Hon'ble Supreme Court in the case of Banwari Lal v. Chando Devi (Smt.) (through LRs. ) and Anr., l (1993) 1 Supreme Court Cases 581 ; and of the High Court in the cases of Mukhtiar Singh v. Arjun Singh, 1993 (Suppl.) Civil Court Cases 81; Hari Ram and Ors. v. Nafe Singh and Ors.? (1998-1)118 P.L.R. 852; Balwinder Singh v. Karnail Singh 2000(3) Civil Court Cases 92 and Kishan Chand v. Rajinder Kaur, 1993 (Suppl.) Civil Court Cases 308 (P&H). On the other hand, learned counsel for the respondent contends that the compromise decree dated 15,1.1986 was the result of fraud and misrepresentation and as such the same could be challenged by filing as independent suit and the learned Courts below have correctly applied the law to the facts of the present case and the decree passed in favour of the plaintiff does not suffer from any error. In support of his contention, the learned counsel relies upon the judgment of Hon'ble Supreme Court and of the High Court in the cases of Ruby Sales and Services (P) Ltd. v. State of Maharashtra 1994(1) Recent Revenue Reports 551; Karnail Singh and Ors. v. Dalip Kaur and Ors., (1995-3) 111 P.L.R. 332 and Kashmira Singh (died) through LRs. v. Gram Panchayat of village Budha Khera (2000-3)126 P.L.R. 195.
4. In order to appropriately deal with the rival contentions raised on behalf of the parties, reference to the basic facts would be necessary.
5. Smt. Sardari Devi filed a suit for declaration against her husband, her brother-in-law (brothers of the husband) and father-in-law. She claimed that she had been given sufficient dowry and jewelry articles etc. in her marriage as her Istri Dhan. The ornaments wre sold by defendant No.4 as he had to purchase the land measuring 23 Kanals 11 Marias at village Jaroda, Tehsil Jagadhri in the name of the plaintiff. Instead of registering the sale deed in favour of the plaintiff, defendant No. 4 got the sale deed registered in his own name. However, a suit was filed and the land was transferred to the plaintiff in furtherance to the decree passed on 25.8.1989 in Suit No.467 of 1981. Defendant No.4 still continued to hold the possession of the land in dispute. With an excuse to get the tube well for the land for irrigation purpose the plaintiff was persuaded to sign certain papers for taking loan from the Bank. She put her signatures on some papers as required by the defendant No.4. Subsequently, it was revealed that the defendants, particularly defendant No.4 got a decree passed in their favour in Suit No.623 of 1986 and got the land measuring 15 Kanals 11 Marias transferred in their names. The papers on which signatures had been obtained by misrepresentation were utilised by the defendants for recording of a compromise and passing a decree on the said compromise in relation to the transfer of the afore-noticed land. According to her a fraud was played upon her. She never appeared before the Court nor made any statement. She had also not engaged any counsel. Thus, in the present suit, she prayed that a decree dated 15.1.1986 passed in Suit No.623 of 1986 be treated as null and void and ineffective and cannot affect the rights of the plaintiff. She also prayed for a relief of injunction restraining the defendants from forcibly dispossessing her from the land in dispute.
6. The suit was contested particularly by defendants No. 1, 2 and 4, who denied the case of the plaintiff and stated that defendant No.4 was the real owner of the land in question. They challenged the decree passed in Suit No.487 of 1981 and claimed that the said decree did not bind the defendants. They reiterated the correctness of the decree dated 15.1.1986. According to them a compromise was arrived on 15.1.1986. They further stated that the statement of the plaintiff alongwith her counsel was recorded in Court on 15.1.1986 and even husband of the plaintiff had signed the same. She was aware of the statement made in Court. The decree, thus, was binding and the defendants were owners in possession of 15 Kanals 13 Marias. A specific objection was taken that a suit to challenge the compromise decree dated 15.1.1986 was not maintainable keeping in view the provisions of Civil Procedure Code. Even locus standi of the plaintiff was also challenged for filing the suit in question.
7. In the plaint particularly in paragraph No.9 an averment was made that the plaintiff had never signed any papers with the intention to transfer her land to any body and her signatures were obtained in collusion and conspiracy with each other by the defendants. They played a fraud upon the plaintiff. She never appeared before the Court to make a statement. These averments were specifically denied in the written statement and it was stated that no fraud was played upon the plaintiff. It was specifically averred that the plaintiff made the statement herself in Court and not through any attorney. Reference was also made by the defendants that the Suit No.623 was filed in 1981, while it was decreed on the basis of the compromise on 15.1.1986. As such no fraud in any manner whatsoever, was played upon the plaintiff.
8. The basic and preliminary question that arises for consideration in the present case is whether the suit challenging the compromise decree dated 15.1.1986 between the parties was maintainable or not ? The importance of this question is further emphasised for the reason that if the question is answered, in the negative, then the question of preferring an appeal against the judgment and decree passed in a suit, which itself was not maintainable or was barred in law, would hardly arise. The provisions of Order 23 of the Code were amended by the Amendment Act No. 104 of 1976 with effect from 1.3.1977. The parties to the suit were granted liberty to compromise even the matters beyond the purview and scope of the suit. Subject to the satisfaction of the conditions stated in Rule 3 and 3-B, parties were bound by the decree passed by the Court on the basis of a compromise entered into between the parties. Rule 3-A of Order 23 completely barred filing of a suit to set aside a decree on the ground that compromise on which the decree is passed was not lawful. The said provision reads as under:
"3-A. Bar to suit.-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
9. The learned counsel for the appellants while referring to the afore-stated judgments and the provisions of law, contended that there is an absolute bar to the filing of the suit and the view taken by a Division Bench of this Court is per incuriam in the view of the legislative provisions and other judgments of this Court and the judgment of the Hon'ble Apex Court in Banwari Lal's case (supra).
10. The learned counsel for the appellants also contended that the expression "unlawful" as provided in Rule 3-A of Order 23 of the Code includes both void and voidable contracts. A contract or an agreement which came into existence as a matter of misrepresentation or fraud would be voidable under the provisions of the Contract Act and the bar provided under Rule 3-A would come into play in absolute terms against filing of a suit under Rule 3-A and to an appeal under Section 96(3) of the Code to an appeal.
11. The contention raised by the learned counsel for the appellant cannot be said to be devoid of any merit, but keeping in view the fact that a Division Bench of this Court specifically, upon instructions, formulated a question of law and answered the same in the following terms:
"Q. What is the import of the words 'not lawful' in Rule 3-A of Order 23 of the Code; do these words have or have not the same connotation as the words "shall not be deemed to be lawful" in the Explanation to Rule 3-A of Order 23 of the Code or to be a little more specific, whether a separate suit lies to set aside the decree on the ground that the agreement or the compromise on which it is based is void having been brought about by misrepresentation, under influence or fraud etc.?
Ans. The words "not lawful" occuring in Rule 3-A of Order 23 of the Code have wider content than similar words in the Explanation to Rule 3. The Explanation to Rule 3 deals with agreements or compromises which are not to be deemed to be lawful if they are void or voidable under the Indian Contract Act, 1872, but the agreement or compromises which are not lawful as referred to in Rule 3-A are more general in term and are not engrafted by the limitations as inserted in the Explanation appended to Rule 3. If the agreement or compromise is not the result of consenses of mind of two person in regard to certain matters, viz. when the consent of one of them to the terms is obtained by the other by some illegal means, namely, by fraud, coercion or undue influence, there is in fact no compromise. Rule 3-A does not bar the maintainability of the suit challenging the compromise on these grounds. However, the Court can in exercise of its inherent jurisdiction also relieve the party alleging fraud, coercion or undue influence of the agreement. Question No. 1 is answered accordingly."
12. In view of the above law laid down by a Division Bench of this Court, which is binding on a Single Judge of this Court, I would follow the law as laid down despite the above contention. As the Division Bench has held that a suit challenging a compromise decree on the ground that it was obtained by misrepresentation and fraud is maintainable, the argument of the appellants that no suit was maintainable, cannot be sustained.
13. This was the only contention raised on behalf of the appellants in the present appeal. As already noticed, the learned Courts below have come to a concurrent finding of fact and conclusion that the decree was obtained as a result of fraud and misrepresentation, it will not be proper for this Court to interfere in the concurrent finding of fact, more particularly when such finding is based upon evidence on record and its proper appreciation. In this regard, reference can be made to the judgment of the Hon'ble Supreme Court in the case of Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs and Ors. (2001-2) 128 P.L.R. 492 (S.C.).
14. As a result of the above discussion and being bound by the law laid down by the Division Bench as afore-referred, this Court has no hesitation in dismissing the appeal. Thus, the appeal is dismissed without any order as to costs.