Delhi High Court
Joginder Singh Bedi vs Bawa Darbara Singh And Ors. on 3 August, 1989
Equivalent citations: 39(1989)DLT270, 1989(17)DRJ241
JUDGMENT P.N. Nag, J.
(1) The defendants in this application filed by them under Order 7 Rule 11, Order 12 Rule 6 and Section 151 of the Code of Civil Procedure seek rejection of the plaint or alternatively dismissal of the suit on the ground; inter alia that the suit turn declaration for setting aside (he compromise decree passed under Order 23 Rule 3 of the Code to Civil Procedure by this Court on 4th Januarv, 1975 in Suit No. 443 of 1981 is not maintainable in view of the bar provided under Order 23 Rule 3A of the Code of Civil Procedure and further the plaintiff has acted upon on the compromise decree and taken benefits and advantage out of such decree. and as such he cannot be permitted to challenge this compromise decree.
(2) The facts giving rise to this application are that the plaintiff tiled Suit No. 443/81 for partition and rendition of accounts regarding Joint Hindu Family properties. The properties for the partition in this suit were the immoveable properties as at present referred to in paragraph 2 of the suit and one of the properties is property No. "0, Malcha Marg, Chanakyapuri. New Delhi measuring about 805 sq, yds. The compromise in that suit was arrived at between the parties and a joint application under Order 23 Rule 3 and Section 151 of the Code of Civil Procedure for recording the compromise and passing the decree in terms of the compromise was moved. The statements of the parties were recorded on 4th January, 1985 and on the same date the decree in terms of compromise was passed.
(3) It appear that on 23rd July, 1985 the plaintiff hled, in application (I A 3952/85) under Order 23 Rule 3 and Section 151 of the Code of Civil Procedure for setting aside the compromise decree dated 4th January, 1985 on substantially the same grounds which have been taken in the present suit. These grounds are that the defendant have alleged in the writer statement that some of the properties had been bequeathed to them by H.S. Bedi, the deceased brother of the plaintiff vide Will dated 2nd August, 1967 The said Will was a forged document and the plaintiff had filed a complaint against his father and two brothers. In the said complaint the said defendants were summoned. A revision petition was filed against the order of summoning. During the pendency of the revision petition defendant No. 2, Manvinder Singh Bedi, and defendant No. 4, Harjeet Singh Bedi, approached the plaintiff for a settlement. When the plaintiff showed his unwillingness he was manhandled and given beatings with the help of anti social elements. Defendant No. I Bawa Darbara Singh, father of the plaintiff, misused his position as father and exercised undue influence and forced him to accept the compromise. His father had told him that he was giving entire Malcha Marg property to the plaintiff and on his assurance the plaintiff signed on the compromise petition. When he read she compromise he pointed out the discrepancy to his father who orally assured him that every oral commitment would be duly honoured. In these circumstances he persuaded his counset, Mr. P.K. Seth, to sign the compromise on his behalf. The said compromise. it was pleaded, wa(r) under compulsion. The compromise having been entered into under duress, coercion and undue influence was inequitable and bad in law.
(4) After hearing the parlies, this application under Order 23 Rule 3(IA 3952/85) was dismissed by this Court on 26th A.u.eust, 1986 on the ground that the application was not maintainable. Once the decree has been passed after having recorded the compromise between the parties in accordance with the law and after the Court having satisfied itself about the adjustment of claims on the basis of the lawful compromise, the Court has no power to set aside the decree.
(5) The plaintiff after the compromise decree has acted upon and taken benefits and advantage out of it. The plaintiff sought mutation in his own name in respect of first and second floor of 70, Malcha Marg, Diplomatic Enclave, New Delhi and wrote to the Land and Development Officer on 11th January, 1985 that on the basis of Ike aforementioned judgment of the Delhi High Court the mutation may be effected in his name for the first and second floors of the above mentioned property as joint owners along with his father Datbara Singh The plaintiff further, vide written Lease Deed dated 29th October, 1986, gave on lease the first floor of the aforesaid property, i.e. 70, Malcha Marg. Diplomatic Enclave, New Delhi at the rate of Rs. 1,000.00 p.m. and in this Lease Deed it was stipulated that on the basis of compromise decree of the High Court dated 4th January, 1985 be is the absolute owner and in that capacity he is doing so. It is relevant to point out here at this stage that this Lease Deed was executed on 29th October, 1986 almost two months after the application moved by the plaintiff under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure (IA 3952/85) for setting aside the decree was dismissed (I A 3952/85 was dismissed on 6th August, 1986). The plaintiff also deposited stamp papers of Rs. 1,000.00 in Court for drawing up the decree sheet.
5.The plaintiff who was delivered possession of (be properly falling to his share, namely, the first and barsati floors under the compromise decree continues to have its use and enjoyment until now. In fact in 1985 he obtained about Rs. 78,000.00 from the Austrian Trade Commission by agreeing to let out the back portion of the first floor of property No. 70, Malcha Marg, New Delhi.
(6) In answer to the application of the defendants the plaintiff has given evasive replies and substantially admitted the facts. However, he has again insisted that the compromise on which decree was passed was effected on the basis of fraud, misrepresentation, coercion, undue influence etc. (7) Counsel for the defendants, Mr. Madan Bhatia, strenuously urged that the suit for declaration declaring the earlier decree dated 4th January 1985 in Suit No. 443/81 based on the compromise, on the grounds of fraud duress, misrepresentation, undue influence etc. is not maintainable in view of complete bar of Rule 3A of Order 23 of the Code of Civil Procedure according to which no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. There is good deal of force in this submission of counsel for the defendants and is must be accepted. Rule 3A of Order 23 which is reproduced below was inserted by amendment Act, 104 of 1976 with effect from 1st February, 1977 : "3A-NOsuit shall lie to set aside a decree on the ground that the compromise on which the decree is based wag not lawful."
Before incorporation of this Rule there was a conflict of opinions between the various High Court on the point whether a suit would lie and be maintainable for setting aside the consent decree on any of the grounds on which the contract can be set aside as fraud, mistake etc. One predominant view was that such a suit is maintainable for the reason that a consent decree in only a contract between the parties with the command of a Judge super added to it. The compromise being an ace of parties and not an act of court in a suit for setting aside the compromise decree what is set aside is the act of recording of compromise. The aforementioned rule 3A sets arrest the whole controversy. Exactly similar question arose before this Court in Uttam Chand Bhatia v. Amir Chand Bhatia. S. No. 284/84, decided on 6th December, 1984 as to whether a suit would lie for setting aside the compromise decree. The observations of M.K. Chawla. J. in that case are reproduced below : "The words lawful agreement or compromise' in Rule 3 had given rise to a conflict in the mailer of interpretation. One view was that agreements which are voidable under Section 19A. power to set aside contracts induced by undue influence) of the Contract Act by some High Courts. To resolve this controversy an explanation was added to the Rule to set the matter right. The explanation reads thus:- "An agreement which is void or voidable under the Indian Contract Act, 1972, shall not be deemed to be lawful within the meaning of this rule." For quite some time the amended provision held the field. It must be remembered that a compromise decree is but a contract with the command of a Judge superadded to it. It could be set aside on any of the grounds such as fraud, mistake, undue influence, misrepresentation etc. In view of ihe explanation added to Order 23 Rule 3, number of suits were filed seeking to set aside the consent decrees. Subsequently, however, a new conflict arose between different High Courts. while interpreting the word lawful. Ordinarily the word lawful means lawful within the meaning of the Contract Act or other Rules or substantive law governing contract. But in a Mysore case, it was held that where a compromise decree passed by a court of competent jurisdiction contains a term which is opposed to law or public policy, but the decree has not been set aside, in proper proceedings, the decree operates as res judicata. The other High Courts took a different view. To resolve this conflict Rule 3A was inserted by the Amendment Act 104 of 1976 in the Code of Civil Procedure. It reads as under :- 'Rule 3A-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful,' The fact remains that by filing the present suit the plaintiff seeks the relief of a declaration to the effect that the compromise application, the judgment and the decree dated 26-4-1982 in Suit No. 349/1982 be declared as illegal, void, nullity and not binding on the plaintiff. The provisions of Rule 3A of Order 23 are very clear and exhaustive. No scope is left for filing or entertaining such like suits. The intention of the Legislature in enacting this provision was to put an end to the frivolous litigation, after' the parties had entered into a compromise with open eyes. The bare reading of this Rule goes to show that even if the compromise was made the basis of the passing of the decree was not lawful, yet no suit shall lie to set aside the said decree."
(8) I am in respectful agreement with the views expressed by Chawla, J. in Uttam Chand Bhatia's case (supra). Therefore, in the facts and circumstances of this case the present suit is not maintainable as it is a suit for declaration for netting aside the compromise decree dated 4th January, 1985 passed by this Court in Suit 443/81 and rule 3A is a complete bar to the maintainability of such a suit.
(9) The matter does not rest here. The defendants are entitled to succeed on second ground as well that after the compromise decree was passed, the plaintiff has acted upon and taken benefits and advantage out of it as already explained and referred to earlier which need not be re-staled. The claim in this suit is in respect of the same transaction and between the same parties. In this connection the observations of the Supreme Court in Nagubai Ammal and others v. B. Sharma Rao md others. may be referred to : "The observations of Scrutton, L.j. on which the appellants rely are as follows: "A plaintiff is not permitted to 'approbate and reprobate'. The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election-namely, that no party can accept and reject the same instrument : Ker v. Wauchope (1819) 1 Bligh 1(21) (E) : Douglas Menzies v. Umphelby 1908 Ac 224 (232) (F). The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction" It is clear from the above observations that the maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election. and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto. The law is thus stated in Halsbury's Laws of England. Volume Xiii, p. 454, para 512 : "On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais, and may conveniently be referred to here. Thus a party cannot, after taking advantage under an order (e.g. payment of costs), be heard to say that it is invalid and ask to set it aside, or to set up to the prejudice of persons who have relied upon it a case inconsistent with that upon which it was founded; nor will he be allowed to go behind an order made in ignorance of the true facts to the prejudice of third parties who have acted on it." In view of the facts and circumstances of this case and in the Sight of the observations of the Supreme Court, the plaintiff cannot be permitted to challenge the compromise decree after having taken benefits ana advantage out of it. He cannot be permitted to approbate and reprobale.
9.Reference is also invited to Dhrubendra Deb Roy and others v. Kumarendra Deb Roy and others which also Jays down that if a party adopts an order of the Court and takes the benefit there under. he cannot be allowed to challenge the correctness of that order.
(10) As a result of the above discussion the plaint is hereby rejected as per the provisions of Rule 11(a) of Order 7 of the Code of Civil Procedure. the suit being not maintainable.