Jammu & Kashmir High Court
Vipan Aggarwal And Others vs Raman Gandotra And Others on 30 July, 2021
Equivalent citations: AIRONLINE 2021 J AND K 435
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 14.07.2021
Pronounced on: 30.07.2021
OW104 No. 46/2013
IA Nos. 52/2013, 1/2018
Vipan Aggarwal and others ..... Petitioner(s)
Through :- Mr. Narinder Kr. Attri, Advocate
V/s
Raman Gandotra and others ..... Respondent(s)
Through :- Ms. Himani Uppal, Advocate vice
Mr. R.K. Jain, Sr. Advocate for
Respondent No. 1
Mr. Rahul Bharti, Sr. Advocate with
Ms. Zoya Bhardwaj, Advocate for
respondent Nos. 2 and 3
CORAM : HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
1. The petitioners herein have invoked the supervisory jurisdiction of this Court seeking quashment of order dated 17.10.2012 (for brevity „impugned order) passed by the court of 2nd Additional Munsiff, Jammu (for brevity „court below‟) in case titled as "Vipan Aggarwal and ors. vs. Raman Gandotra and ors.".
2. Before adverting to the grounds of challenge urged in the petition, brief facts emerging from the petition are required to be outlined, hereunder:-
(I) A suit for permanent prohibitory injunction is stated to have been filed by the plaintiffs/petitioners herein against defendants/respondents herein qua the land measuring 2 kanals 19 marlas covered under Khasra No. 694 situated 2 OW104 No. 46/2013 at Village Delli Jammu. The defendant/respondent No. 1 herein is stated to have filed written statement.
(II) The application for interim relief accompanying the suit is stated to have been dismissed by the trial court vide order dated 21.10.2005 and an appeal filed against the same is also stated to have been dismissed on 15.05.2008.
(III) The petitioner Nos. 1 and 3 are stated to have constituted an attorney on 09.03.2010 for managing, looking after and disposing of the land in question on account of being Government employees.
(IV) In the month of May 2010, the defendant/respondent No. 1 herein is stated to have divulged to the said attorney of the petitioners that the suit stands compromised in terms of a compromise deed, where after, the plaintiffs/petitioners herein are stated to have enquired about the same from the counsel who is stated to have shown his complete ignorance about the said compromise.
(V) The plaintiffs/petitioners herein are stated to have engaged another counsel in the case and upon examination of the record state to have come to know that the suit stands disposed of on the strength of a compromise deed and consequently a judgment/decree passed on 13.09.2008. (VI) An application under Order 23 Rule 3 read with Section 151 CPC is stated to have been filed by the petitioners before the court below after obtaining copies of the application for withdrawal of the suit, statements recorded in support thereof as also of the compromise deed. The said application is stated to have been filed inter alia on the grounds that the application moved for withdrawal of the suit filed on 26.07.2008 on the strength of the compromise dated 24.07.2008 has been without signatures of 3 OW104 No. 46/2013 the learned Advocate and that the plaintiffs/petitioners herein neither executed any compromise nor appeared before the court below in support thereof and that the learned Advocate appearing on their behalf has shown complete ignorance about the same and that the defendant/respondent No. 1 herein has committed a fraud upon the plaintiffs/petitioners herein. (VII) In the said application the respondent Nos. 2 and 3 herein came to be impleaded as non-applicants along with respondent No. 1 herein, in that, the respondent No. 1 herein is stated to have executed a sale deed qua the land in question in favour of respondent Nos. 2 and 3 herein.
(VIII)The trial Court in terms of impugned order is stated to have dismissed the application filed by the petitioners herein under Order 23 Rule 3 read with Section 151 CPC after summoning and inviting the objections from the non- applicants/respondents herein, holding the same besides ill-founded as also a blatant abuse of process of Court, imposing cost of Rs. 10,000/- upon the applicants/petitioners herein.
3. The impugned order is being questioned in the instant petition inter alia amongst others on the grounds that the impugned order passed by the court below is perverse and findings recorded thereof are based on no evidence, inasmuch as, that the court below failed to take into consideration the basic principles of law with regard to admissibility of the evidence and that the court below has based its findings upon the report of inquiry officer in the criminal proceedings having originated from a complaint filed by the petitioners herein before the Crime Branch after obtaining a direction thereof from CJM.
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4. In nutshell, the court below is contended to have passed the impugned order against law and in violation of principles of natural justice, having caused miscarriage of justice.
5. The petitioners questioned the impugned order on multiple grounds urged in the petition and, thus, seek quashment of the impugned order.
6. Per contra, the respondent No. 1 in objections filed in opposition to the petition has resisted and controverted the contentions raised and grounds urged in the petition and consequently seek dismissal of the petition inter alia on the grounds that the petition in its present form is not maintainable while invoking supervisory jurisdiction of this court and that the impugned order has been passed by the court below in accordance with law validly and legally.
7. Heard learned counsel for the parties and perused the record.
8. The appearing counsel for the parties while making their submissions reiterated the contentions raised and grounds urged in their respective pleadings.
9. Before adverting to the issues involved in the petition, it would be advantageous and appropriate to refer to the remedy availed by the petitioners herein, against the consent judgment and decree dated 13.09.2008 under Order 23 Rule 3 read with Section 151 CPC.
10. Order 23 Rule 3 CPC deals with compromise of suit and is extracted and reproduced hereunder being relevant and germane:-
"3. Compromise of suit. - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, [in writing and signed by the parties] or where the defendant satisfies the plaintiff in respect of the whole or any part of 5 OW104 No. 46/2013 the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject- matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]:
[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decided the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation. - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.]"
Order 23 Rule 3-A also being relevant and germane herein deals with bar to suit and is also extracted and reproduced hereunder:-
[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.
"3-A. Settlement by oath. - If the parties agree to have the suit or any part of it decided by an oath taken by one of them in Court or elsewhere and tender a written agreement signed by both of them setting forth the terms of the oath and the place where it is taken, the Court may accept such agreement. After the oath has been taken in the manner proposed, the Court shall decide the case in terms of the agreement. After the agreement has been accepted by the Court, it shall not be competent to any of the parties to withdraw therefrom without the leave of the Court. If any party withdraws or refuses to take the oath without lawful excuse, the Court may decide the cause against him or pass such other order as it deems proper."6 OW104 No. 46/2013
A perusal of Order 23 Rule 3 postulates that if it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the court shall order such agreement, compromise or satisfaction to be recorded and pass decree in accordance therewith.
However, the proviso appended to the Rule 3 contemplates that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the said question.
11. Perusal of Order 23 Rule 3-A manifestly places a rider upon the institution of a suit for setting aside a decree on the ground that the compromise on which the decree is based was not lawful.
12. A reference hereunder to Order 43 Rule 1-A CPC being relevant and germane to the controversy involved in the petition also requires to be taken into consideration and, thus, is extracted and reproduced hereunder:-
"[1-A. Right to challenge non-appealable orders in appeal against decrees. - (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]"7 OW104 No. 46/2013
A plain reading of Order 43 Rule 1-A CPC contemplates a right having been given to a party challenging the recording of the compromise to question its validity thereof while preferring an appeal against the decree. It is significant to note here that Section 96 Clause 3 CPC does not operate a bar to such an appeal, in that, Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute.
13. Keeping in mind the aforesaid legal position, the validity or otherwise of the impugned order may be tested, however, before proceeding to deal with the same, examination of the record becomes imperative.
14. A perusal of the record tends to show that the petitioners filed the injunction suit against the respondent No. 1 in respect of land measuring 2 kanals 19 marlas covered under Khasra No. 694 situated at Village Delli Jammu and upon vacation of an interim order granted in the application for interim relief accompanying the suit on 21.10.2005, an appeal had been taken against the said order filed by the petitioners herein which came to be dismissed by the Appellate Court (Additional District Judge, Jammu). The record further tends to show that the suit was decreed by virtue of a compromise executed between the parties on 13.09.2008 and that while entertaining the said compromise, the trial court had recorded the statements of the parties on 26.07.2008 in support of the compromise deed entered into between them on 13.09.2008. Record further tends to show that the said decree was registered by the Sub-Registrar (City-Judge), Jammu on 27.10.2008 and that the applicants appeared before the Sub-Registrar (City-Judge), Jammu on the said date, identified by their counsel. The record further demonstrates that the application for withdrawal of suit in terms of the compromise deed was filed by the applicants bearing the signatures of all the applicants. 8 OW104 No. 46/2013
Ironically, the applicants, while filing the application under Order 23 Rule 3 read with Section 151 CPC on 12.01.2012, after alleging to have gained knowledge about the compromise, withdrawal of the suit and compromise decree & judgment in the month of May, 2010, do not offer any explanation worth the name as to why the filing of the application under Order 23 Rule 3 CPC was so much delayed.
Indisputably, the complaint filed by the petitioners herein before CJM, Jammu against the alleged fraud qua compromise deed and withdrawal of suit came to be forwarded by the said court to Crime Branch, Jammu for necessary action on 06.07.2010. The Crime Branch upon conducting an enquiry, seemingly, has found the allegations leveled in the complaint baseless and unfounded while taking into account the statement of the counsel for the applicants/petitioners, namely, Mr. Ajay Vaid.
15. The petitioners while maintaining application under Order 23 Rule 3 read with Section 151 CPC, have sought recalling of compromise as well as order regarding the compromise, compromise decree along with application for withdrawal of the suit. Although, the petitioners herein could have maintained the said application qua the allegations by them and denied by the other side, yet they could not seek recalling of compromise decree under the said provision. The remedy to challenge such kind of decree as noticed above in the preceding paras is envisaged under Order 43 Rule 1-A. The application, thus, is legally misconceived to this extent. The impugned order in the light of Order 23 Rule 3 read with Section 151 CPC, insofar as, it relates to the compromise deed in view of the aforesaid analysis upon examination of the record is as well found to be factually misconceived.
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16. In view of the aforesaid position, the question that now arises is as to whether supervisory jurisdiction in the peculiar facts and circumstances of the case is required to be exercised or not. The law in this regard is no more res integra and the Apex Court in case titled as "Shalini Shayam Shetty & anr Vs. Rajendra Shankar Pati", reported in 2010 (8) SCC 3291 has laid down besides other following illustrative principles in this behalf;
"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:
(a) xxxxx
(b) xxxxx
(c) High Courts cannot, on the drop of a hat, in
exercise of its power of superintendence under
Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) xxxxx
(e) xxxxx
(f) xxxxx
(g) xxxxx
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is 10 OW104 No. 46/2013 a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) xxxxx
(j) xxxxx
(k) xxxxx
(l) xxxxx
(m) xxxxx
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality".
17. Viewed thus, what has been observed, considered and analyzed herein above, the impugned order does not call for any interference. Resultantly, the petition fails and is, accordingly, dismissed.
(Javed Iqbal Wani) Judge JAMMU 30.07.2021 Pawan Angotra Whether the order is speaking? : Yes Whether the order is reportable? : Yes PAWAN ANGOTRA 2021.07.30 13:13 I attest to the accuracy and integrity of this document