Jammu & Kashmir High Court - Srinagar Bench
Ali Mohd. Bhat S/O Gh. Mohd. Bhat R/O ... vs Deedar Singh & Ors on 18 September, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR C. Rev. No. 19 of 2014 Ali Mohd. Bhat S/o Gh. Mohd. Bhat R/o Chandoosa Pachhaar, Tehsil & District Baramulla. Petitioners Karan Singh S/o Shankar Singh R/o Gohan Ladi Jungal, Tehsil & District Baramulla. Deedar Singh Pritipal Singh Jang Bahadur Singh Sons of Shankar Singh Residents of Gohan Ladi Jungal, Tehsil & District Baramulla. Respondents !Mr. Abrar Ahmad, Advocate ^Mr. N. A. Beigh, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice Date: 18/09/2015 : J U D G M E N T :
01. This Civil Revision Petition is filed against the preliminary order dated 29.03.2014 passed in suit bearing Civil Original File No.08 titled Karan Singh v. Ali Mohammad Bhat, wherein the suit filed praying for a decree for declaration to declare the decree dated 31.07.1996 passed in suit file No.65 titled Ali Mohammad Bhat vs. Deedar Singh & Ors, as null and void was held maintainable.
02. The compromise decree dated 31.07.1996 was put to challenge in a fresh civil suit filed by 1st respondent/plaintiff on the ground that the said decree was a collusive decree and therefore, the said decree has to be declared as invalid as it was obtained by playing fraud. After filing of the written statement in the suit, seven issues were framed in the suit and issues 4, 5 and 6 were treated as preliminary issues.
03. The plea raised before the trial court on behalf of the petitioner, defendant in the suit, is that the compromise decree cannot be challenged in a separate suit and even if the compromise decree is to be questioned for any reason, as alleged, the plaintiff should have approached the court by filing an appropriate application under proviso to Rule 3 of Order XXIII for cancellation of the decree. The said plea of the petitioner, defendant No.1 in the suit, has been rejected by Principal District Judge, Baramulla, by virtue of order dated 29.03.2014.
04. Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents.
05. The issue arising for consideration is whether a decree passed on compromise can be challenged by filing fresh suit on the ground of fraud.
06. Order 23 Rule 3A CPC specifically bars filing of subsequent suit to set aside the decree on any ground including the ground that decree has been obtained by playing fraud. The compromise on the basis of which decree was passed by fraud can be treated as unlawful or void under Indian Contract Act 1872 which would be covered by the provisions of Order XXIII Rule 3A CPC. The Honble Supreme Court in the decision reported in AIR 1993 SC 1139 (Banwari Lal v. Smt. Chando Devi), has held that a compromise decree can be challenged before the court which has passed the same by filing an application and not by filing a subsequent suit.
07. The said position is reiterated in the decision reported in (2006) 5 SCC 566 as well as the recent judgment of the Honble Supreme Court reported in AIR 2015 SC 706 (R. Rajanna v. S. R. Venkataswamy & Ors.). Paragraph nos. 8 to 10 of the latest judgment read thus:- 8. The precise question that falls for determination in the above backdrop is whether the High Court was right in directing the appellant to seek redress in the suit having regard to the provisions of Order XXIII, Rule 3 and Rule 3-A of C.P.C.
9. Order XXIII, Rule 3 and Rule 3-A of C.P.C. may at this stage be extracted for ready reference:
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 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 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 decide 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 shall not be deemed to be lawful within the meaning of this rule.
10. It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII, Rule 3 where one party alleges that the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order XXIII, Rule 3, the agreement or compromise shall not be deemed to be lawful within meaning of the said rule if the same is void or voidable under the Indian Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise inwriting and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order XXIII, Rule 3-A clearly bars a suit to set aside a decree on the ground that the compromise in which the decree is based was not lawful. This implies that no sonner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII, Rule 3-A of C.P.C.
08. The allegation that fraud was played while getting a consent decree can be raised before the Court before which the alleged fraud took place. It is like reviewing the judgment by the very same Court. It is well settled in law that decree obtained by fraud can be challenged at any time and application filed cannot be dismissed on the ground of delay in moving the Court. Honble the Supreme Court has laid down the said proposition in the decisions reported in (1994) 1 SCC 1 ( S. P. Chengalvaraya Naidu v. Nagannath) and (2008) 12 SCC 353 (Ganpatbhai Mahijibhai Solanki v. State of Gujarat and ors).
09. In the decision reported in (2000) 3 SCC 581 ( United India Insurance Co. Ltd. v. Rajendra Singh ) it is held that an order obtained by fraud is non est in the eyes of law and it can be challenged in any proceedings, even in collateral proceedings. No Court or Tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation.
10. Applying the said judgments to the facts of the case, the suit filed by the 1st respondent/plaintiff to set-aside the compromise decree dated 31.07.1996 before the Principal District Judge, Baramulla, is not maintainable and the suit filed in dismissed as not maintainable. If the 1st respondents/plaintiff in the suit is having any right to question the compromise decree on any one of the grounds, it is up to him to approach the said court by filing an application under Rule 3 of Order XXIII, and if any such application is filed, the said Court shall decide the application on merits within six months from the date of filing of the application. The petitioner herein cannot be allowed to contend that due to the delay in filing application the same is not maintainable or shall not be entertained.
11. The revision petition is allowed with above said liberty. No costs.
(N. Paul Vasanthakumar) Chief Justice Srinagar 18.09.2015 Abdul Qayoom, PS