Jammu & Kashmir High Court - Srinagar Bench
Ghulam Qadir Parray vs State Of J&K And Others on 10 March, 2023
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on:07.03.2023
Pronounced on: 10.03.2023
OWP No.1125/2016
GHULAM QADIR PARRAY ... PETITIONER(S)
Through: - Mr. M. Amin Bhat, Advocate.
Vs.
STATE OF J&K AND OTHERS ...RESPONDENT(S)
Through: - Mr. Faheem Nissar Shah, GA-for R1 to R4.
Mr. Syed Irfan Masood, Adv.-for R5&R6.
CORAM:HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
1) Challenge in this petition has been thrown to an order dated 13.06.2016, propounded by learned Principal District Judge, Anantnag (hereinafter referred to as 'the court below') in appeal File No.01/2016 titled 'Ghulam Mohammad Dar vs. Commissioner/Secretary to Govt. Rural Development, J&K, & Others', vide which, on the joint submission/suggestion made at bar by counsels for the parties and consensus arrived at, the suit filed by respondent No.5 was disposed of with certain directions and the trial court was directed to draw the decree sheet.
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2) Case of the petitioner is that on the request of official respondents, he donated 01 kanal of land under Khasra No.1487 situated atHalqaNagbal-B for construction of Apna Panchayat Ghar. According to the petitioner, a detailed report was called vide communication dated 30.09.2015, which indicates that his land was taken over and the proposed Panchayat Ghar was agreed to be constructed over his land and it was also agreed that the construction work will be carried out by the petitioner and his son will be employed as Chowkidar. The petitioner dumped the building material on the aforesaid land for construction of the Panchayat Ghar.
3) The allegation of the petitioner is that respondent No.5, who has no role in the construction of Apna Panchayat Ghar, filed a suit for permanent injunction on the ground that the land of Mohammad Jabbar Bhat, respondent No.6 herein and Reyaz Ahmad Bhat was more appropriate for construction of the said Panchayat Ghar and the land of the petitioner, which is nearer to a Nallah, was not appropriate for the purpose. The trial court i.e. learned Sub Jude, Anantnag, vide order dated 31.12.2015, dismissed the interim application filed by the plaintiff/respondent No.5, which order came to be OWP No.1125/2016 Page 2 of 11 assailed by the said respondent in an appeal in the court below. It is further alleged by the petitioner that in both the suit and the appeal, respondent No.5 concealed the fact that the Panchayat Ghar in question was proposed to be constructed on his land and he had already dumped the building material for construction. According to the petitioner, the parties to the suit compromised the appeal without impleadment of the petitioner as a necessary party.
4) The petitioner has assailed the impugned order, primarily, on the ground that since he was neither impleaded as a party in the suit before the trial nor in the appeal preferred by respondent No.5 before the court below, therefore, the impugned order is liable to be set aside.
5) Countervailing the stand taken by petitioner, both the official respondents as well as private respondent are affront with the contention that present writ petition is not maintainable against an order of a civil court and the petitioner has raised disputed questions of fact which cannot be entertained by this Court in exercise of its writ jurisdiction. According to respondents, it is the petitioner who is guilty of suppression of material facts. OWP No.1125/2016 Page 3 of 11
6) According to the respondents,both petitioner and respondent No.6, Mohammad Jabbar Bhat, offered to donate their respective lands for the construction of Panchayat Ghar in HalqaNagbal-B, pursuant to a notice issued by respondent No.4, Block Development Officer, Block Khoveripora, Anantnag, inviting Surpunch, Punches and Village Level Committee for identification of land for construction of Panchayat Ghar. In January, 2015, it was resolved in a meeting held by the Panchayat that the land donated by respondent No.6, being situated in the Centre of the Halqa and having access to road, electricity and water, was suitable for construction of the Panchayat Ghar as against the land of the petitioner which was situated on a Nallah and was prone to floods. This resolution was followed by resolutions dated 28thApril, 2015, and September, 2015, which approved the earlier resolution of January, 2015. Subsequently, the Panchayat approached respondent No.4 for construction of the Panchayat Ghar on the land donated by respondent No.6,however, no action could be taken as the petitioner used his influence and pressurized the official respondents to construct the Panchayat Ghar on his land. Thereafter respondent No.5, fearing that the official respondents may construct OWP No.1125/2016 Page 4 of 11 the Panchayat Ghar on the land donated by petitioner, filed a civil suit. The application for temporary injunction filed along with the suit was dismissed by the trial court of learned Sub Judge, Anantnag, and in the appeal, a consensus was arrived between the parties and learned court below i.e. the appellate court, passed the impugned order, by virtue of which the suit was disposed of with the direction that all Punchs and Surpunchs of Vail Nagbal-B shall pass fresh resolution with respect to identification of the place for construction of Apna Panchayat Ghar and thereafter defendants/official respondents shall construct Apna Panchayat Ghar at a place which the Panchayat would identify in its majority resolution.
7) According to the respondents, a resolution was again passed after the disposal of the appeal resolving that the land donated by respondent No.6 was most suitable for construction of the Panchayat Ghar. According to the respondents, mere verbal instructions of the then Block Development Officer and dumping of building material by the petitioner would not create a right in his favour to claim the Panchayat Ghar to be constructed on his land.
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8) Learned counsels for the respondents at the outset have questioned maintainability of the present writ petition against a decree passed by a civil court.
9) Having heard rival contentions on the maintainability of the present writ petition, I have given my thoughtful consideration to the facts and circumstances attending the present case as also the law governing the field.
10) Mr. Amin, learned counsel appearing for the petitioner, has relied upon Pushpa Devi Bhagat vs Rajinder Singh reported as (2006) 5 SCC 566, to contend that since no appeal is maintainable against a consent decree in view of specific bar contained in Section 96(3) of CPC and no independent suit is maintainable to question a compromise decree in view of bar contained in Rule 3-A of Order XXIII of CPC, therefore, petitioner is left with no option but to approach this Court for redressal of his grievance under the supervisory jurisdiction of this Court.
11) Ex adverso, learned counsels appearing for the respondents, have argued that petitioner has assailed lawfulness of a compromise recorded by the court below and he must approach the same court which has OWP No.1125/2016 Page 6 of 11 recorded the compromise. They have relied uponTriloki Nath Singh vs. Anirudh Singh and others, reported as (2020) 6 SCC 629.
12) The Code of Civil Procedure came to be amended w.e.f. 01.02.1977 and the legislative intent of the said amendment was considered by Hon'ble Supreme Court in Pushpa Devi Bhagat (supra), in which, having regard to the addition of Rule 3-A in Order XXIII of CPC, it was held by the Apex Court that neither an appeal is maintainable against a consent decree nor an independent suit can be filed for setting aside a consent decree in view of respective bars contained in Section 96(3) and Rule 3-A of Order XXIII of CPC. Relevant extract of the observation reads below:
"15.What has emerged as a legislative intent has been considered in extenso by this Court in Pushpa Devi Bhagat v. Rajinder Singh, after taking note of the scheme of Order 23 Rule 3 and Rule 3-A added with effect from 1-2-1977. The relevant paragraphs are as under:
"17. The position that emerges from the amended provisions of Order 23 can be summed up thus:
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.OWP No.1125/2016 Page 7 of 11
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8--2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8- 2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code."
13) It is evident from the observation of Hon'ble Supreme Court in Pushpa Devi Bhagat (supra) that the only remedy available to a party to avoid a consent decree is to approach the court which recorded the compromise and made a decree in terms of it. OWP No.1125/2016 Page 8 of 11
14) Admittedly, petitioner herein was neither a party in the suit filed by respondent No.5 nor in the appeal filed before the court below.
15) Pushpa Devi Bhagat (supra)came up for discussion in Triloki Nath Singh (supra) and Hon'ble Supreme Court, after detailed discussion on the scheme of Order XXIII Rule 3-A and Order XLIII Rule 1-A, has held that a person, who is not a party to a suit or an appeal, shall approach the same court which recoded the compromise and passed the decree. For facility of refence, relevant extract of the judgment is reproduced below:
22. Indeed, the appellant was not a party to the stated compromise decree. He was, however, claiming right, title and interest over the land referred to in the stated sale deed dated 6-1-1984, which was purchased by him from Sampatiya judgment-debtor and party to the suit.
It is well settled that the compromise decree passed by the High Court in the second appeal would relate back to the date of institution of the suit between the parties thereto. In the suit now instituted by the appellant, at best, he could seek relief against Sampatiya, but cannot be allowed to question the compromise decree passed by the High Court in the partition suit. In other words, the appellant could file a suit for protection of his right, title or interest devolved on the basis of the stated sale deed dated 6-1-1984, allegedly executed by one of the party (Sampatiya) to the proceedings in the partition suit, which could be examined independently by the Court on its own merits in accordance with law. The trial court in any case would not be competent to adjudicate the grievance of the appellant herein in respect of the validity of compromise decree dated 15-9-1994 passed by the High Court in the partition suit.
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23. In other words, the appellant can only claim through his predecessor -- Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other court under the proviso to Order 23 Rule 3 CPC. It must, therefore, follow that the suit instituted before the civil court by the appellant was not maintainable in view of specific bar under Rule 3-A of Order 23 CPC as held in the impugned judgment.
(Underlining by the undersigned)
16) It is pertinent to mention that in Triloki Nath Singh (supra), compromise decree was passed by the High Court in the second appeal and appellant had filed an independent suit to challenge the said decree. It has been clearly observed by Hon'ble Supreme Court that it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other court under the proviso to Order XXIII Rule 3 of CPC. Therefore, the suit filed by the appellant in the said case was held not maintainable.
17) On the conspectus of what has been held by Hon'ble Supreme Court in Triloki Nath Singh (supra), OWP No.1125/2016 Page 10 of 11 it is manifest that only remedy available to a party to a consent decree or any person not a party to a suit or appeal, to avoid such consent decree, is to approach the same court which recorded the compromise and made a decree in terms of it and establish that contract was not lawful.
18) For what has been observed and discussed above, the present petition is not maintainable and is dismissed. In the circumstances, the parties are left to bear their own costs.
(RAJESH SEKHRI) JUDGE Srinagar, 10 .03.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
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