Punjab-Haryana High Court
Madan Gopal vs Din Dayal And Anr. on 17 November, 1986
Equivalent citations: AIR1988P&H124, AIR 1988 PUNJAB AND HARYANA 124, 1986 HRR 477, 1988 REVLR 1 405, (1987) 91 PUN LR 229
Author: M.M. Punchhi
Bench: M.M. Punchhi
ORDER
1. These miscellaneous applications have a background which is summarized hereafter.
2. There is a small shop on the Railway Road, Ambala City in the tenancy of Din Dayal respondent. It was owned by Dr. Madan Gopal. The settled rent was. Rs. 15/- per mensem. Dr. Madan Gopal filed ejectment proceedings against the tenant on some grounds which are not relevant for the present purposes. He was unsuccessful in the first two Courts. Availing the law as it then stood, he filed a revision petition in the Court of the Financial Commissioner, Haryana, which was admitted. By the change of law, the revision petition was transferred to this Court was numbered as Civil Revision No. 1382 of 1979. During the pendency thereof, Dr. Madan'. Gopal died on 25-2-1981. Within a month: thereof on 23-3-1981, Virender Pal Bhardwaj respondent No. 2 moved Civil Miscellaneous Application No. 1185-CII off 1981 seeking relief under O. XXII, R. 3, Civil P. C., for, being substituted/impleaded as a petitioner' to the Civil Revision Petition. The averment in support thereof was that on the death of Dr. Madan Gopal, he was the sole legal representative left behind, being the only son. The said Civil Miscellaneous Application was allowed on 25-3-1981 supported, as it was, by an affidavit of Virender Pal Bhardwaj. Close to the heels of his being substituted as legal' representative of Dr. Madan Gopal, the substituted petitioner Virender Pal Bhardwaj entered into a compromise with the tenant. Din Dayal on 21-4-1981. Thus, he moved Civil Miscellaneous Application No. 1558-CII of 1981 in this Court by filing the Compromise Deed, duly supported by his own affidavit as also the affidavit of Din. Dayal. In terms thereof, the rent was increased from Rs. 15/- to Rs. 40/- per mensem and the tenant was permitted to make necessary repairs in the shop as these were termed to be minor repair and the shop was conceded to be otherwise fit for human habitation. To support the petition Virender Pal Bhardwaj appeared in person before J. M. Tandon J. and in the presence of the counsel for the tenant. the Revision Petition was dismissed as withdrawn on the placement of the Compromise Deed on the fi1e vide order dated 23-4-1981. The proceedings thus came to an end.
3. The present petition has been filed by Smt. Bimla Devi claiming herself to be the sole legal representative of Dr. Madan Gopal contending that the dismissal of the Revision Petition as withdrawn was on the basis of a fraud committed on false affidavits and concealing from the Court that she alone, being the daughter, was the sole legatee under a registered will executed by Dr. Madan Gopal. The relief sought is that the order dated 25-3-1981 permitting Virender Pal Bhardwaj to be impleaded as the sole legal representative and the order dated 23-4-1981 destining the revision petition as withdrawn be recalled and she be substituted as the legal representative.
4. Replies have been filed to the application by both the respondents. Virender Pal Bhardwaj has not the courage to deny that the present applicant is his sister. He does not deny the existence of the registered will in her favour but has otherwise raised the contention that the will is not valid. Undisputedly, civil litigation is going on between the brother and the sister about the estate of Dr. Madan Gopal which includes the ownership dispute about the premises in question in the instant litigation also. The tenant of course has taken the plea that he entered into the compromise bona fide believing that Virender pal Bhardwaj was the sole legal representative of the deceased landlord and the question of any collusion. between them did not arise.
5. I have heard learned counsel for the parties. It is crystal clear that the present applicant, keeping the question of the will part, was a legal representative of the accused Dr., Madan Gopal and in all events the averment of Virender Pal Bhardwaj before this Court that he was the sole legal representative of the deceased was wrong and to his knowledge false. The hurry in which he got himself substituted as the civil revision petitioner and later having compromised the matter goes to show that he wished to have the tenant pay him rent to the exclusion of his sister, the present applicant. The tenant, however, cannot by any means be termed as a party to the fraud, for he innocently, as suggested by him, might have bought off the litigation by enhancement of rent and his dire need to have the premises repaired for as stated at the bar, he runs a tea shop there. Thus, in this situation, the conclusion is inevitable that besides Virender Pal Bhardwaj, the present appellant had to be impleaded as a legal representative to the Revision Petition and I hold it accordingly reserving the right to the present appellant to agitate and prove before the Civil Courts her right to succeed to the property solely, in the event of the registered well being held valid. Only for the purposes of. the present petition, both the brother and the sister are ordered to be impleaded as legal representatives of the deceased-petitioner by recalling order dated 25-3-1981 passed in Civil Miscellaneous Application No. 1l85-CII of 1981.
6. Now on the assumption that both the brother and the sister were co-landlords qua the tenant and one was party to the litigation and the other was not, could the compromise effected between one of them and the tenant be valid? The answer is given in O. XXIII, R.3B, Civil P. C.; though strictly not applicable, yet certainly applicable as a measure of good sense, justice and equity. It provides as follows:
"3B. No agreement or compromise to be entered in a representative suit without leave of Court.--No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.
(2) Before granting such leave; the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.
Explanation--In this rule, "representative suit" means,--
(a) a suit under Section 91 or Section 92,
(b) a suit under R. 8 of Order I,
(c) a suit in which-the manager of an undivided Hindu family sues or is sued as representing the other members of the family,
(d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit."
7. This provision has come about by means of the Civil Procedure Code (Amendment) Act, 1976. Explanation (d) comes to the fore on the facts of the present case because the compromise entered into by one of the landlords and the tenant would be void since the other landlord was not made a party to the proceedings and thus would not be binding on the latter. This being so, the agreement or compromise entered into between one of the landlords and the tenant without taking the Court into confidence about its binding character on other landlord and without obtaining the leave of the Court for the purpose under O. XXIII, A. 3B, Civil P. C., would be void ab initio. And if it is void ab initio, the coils of rules of limitation to have it timely set aside can play no prominent part. The decree or order passed by the Court would thus be non est. In the instant case even the element of fraud is also writ large as by means of the compromise, the entire enhanced rent is now to be appropriated by one of the landlords to the exclusion of the other, a step based on concealment of material facts which by itself was fraud. Thus, the conclusion is inescapable that the order passed by this Court permitting one of the co-landlords to withdrew the petition on the basis of a compromise which was void would render the order passed by this Court on 23-4-1981 in C. M. No. 1558-C.II of 1981 capable of recall and I order its recall hereby. The miscellaneous applications are thus allowed.
8. The end result is that Civil Revision Petition No. 1382 of 1979 is restored to its original number and the present applicant and Virender Pal Bhardwaj, applicant in C. M. No. 1185-C.II of 1981, are the two co-petitioners in the main case and there is no compromise entered between the parties which has any binding effect. The Revision Petition be listed forthwith for hearing. Counsel for the petitioner does not press for costs. Hence no costs.
9. Order accordingly.