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2001 DIGILAW 155 (JK)

Yog Raj v. Kuldeep Raj Gupta

2001-07-30

B.L.BHAT, H.K.SEMA

body2001
1. The facts of this case illustrate a classic example as to how the civil suit is kept alive by pursuing vexatious and frivolous litigation by cantankerous litigant/defendant. The facts of the case recited herein will substantiate this contention. 2. The controversy dates back to 1983 when the plaintiff filed suit namely COS No. 515/1983 on 3-11-1983 and the said suit ended into a compromise decree on 2-12-1983. Defendants thereafter filed a subsequent suit namely suit No.294/ 1989 for setting aside of the compromise decree on the ground that the same was obtained by practicing fraud. It was filed on 13-10-1989. The learned trial court after hearing the parties dismissed the subsequent suit on 30-4-1997, inter-alia holding that the suit is not maintainable. Being aggrieved, he filed CIA No.22/1997 before the learned Single Judge. The learned Single Judge after hearing the parties at length and by a reasoned judgment confirmed the order dated 30-4-1997 passed by learned District Judge, Jammu, by its order dated 30-3-2001. In this appeal, both the order dated 30-4-1997 passed by learned District Judge, Jammu, and 30-3-2001 passed by learned Single Judge has been assailed 3. To appreciate the controversy in proper perspective, the facts leading to the filing of the present appeal is summarily recited strictly for the purposes of disposal of the present appeal. This appeal has been preferred by the defendant. 4. A mortgage deed dated 31-3-1973 was entered into between the appellant-defendant and the respondent-plaintiff on 31-3-1973 for a period of three years. It was registered on 5-4-1973. Civil Suit No. 515/1983 has been filed by the plaintiff with the prayer for a decree for possession by redemption of mortgage in respect of shop situated at Shalimar Road, Jammu, bounded by. North: City Police Station premises; South: Shalamar Road; East: Shop of the plaintiff and. West: Passage to White Hotel and shop owned by Krishan Lal. 5. Plaintiff and defendants along with their Advocate entered appearance on 2-12-1983 with a compromise deed. The compromise deed dated 2-12-1983 is brief and it is extracted. "Suit for redemption. Application for compromising the suit. The parties submit as under: 1. That the above titled suit is pending in this Honble court. 2. That the parties have compromised the suit as the defendant hereby admits the averments made in the pliant. 3. The compromise deed dated 2-12-1983 is brief and it is extracted. "Suit for redemption. Application for compromising the suit. The parties submit as under: 1. That the above titled suit is pending in this Honble court. 2. That the parties have compromised the suit as the defendant hereby admits the averments made in the pliant. 3. That the decree may be passed as under: - a) The defendant shall deliver the possession of the suit shop to the plaintiff on 1-1-1989, as the property stands redeemed. b) The defendant shall pay compensation for use and occupation of the suit shop at such rate as may be fixed by the plaintiff until the possession of the shop is so delivered to the plaintiff. c) The parties shall bear their own costs. It is, therefore, prayed that decree for possession by redemption may kindly be passed in the suit in terms of the above compromise. 6. It may be mentioned here that in the compromise deed, apart from the signature of the plaintiff and defendant, the counsel of the parties have also appended their signatures on the body of the deed of agreement. 7. The aforesaid deed of agreement has been accepted by the learned Sub-Registrar, Munsiff, Jammu by its order dated 2-12-1983. The order runs: "2-12-83: Parties along with their counsel present. They have filled a compromise entered into between them. As such the suit is hereby decided in favour of plaintiff and against the defendant. A decree (compromise decree) shall be separately framed in terms of the compromise of the parties. File shall be consigned to records. No order as to costs. Announced: Sd/-Sub-Registrar, Munsiff, Jammu." 8. From the deed of compromise, it would appear that the defendant-appellant had to deliver the possession of the suit shop to the plaintiff in 1-1-1989, as the property stands redeemed. 9. File shall be consigned to records. No order as to costs. Announced: Sd/-Sub-Registrar, Munsiff, Jammu." 8. From the deed of compromise, it would appear that the defendant-appellant had to deliver the possession of the suit shop to the plaintiff in 1-1-1989, as the property stands redeemed. 9. The appellant-defendant there-after filed a suit No. 294 of 1989 on 31-10-1989, the cause title of which reads as: -"Suit for declaration that the decree dated 2-12-1983 passed by learning Sub-Registrar (Munsiff), Jammu, in civil suit No.515, instituted on 30-11-1983 is null and void, without jurisdiction, imoperative and in executable and not binding on the plaintiff with a consequential relief of prohibitory injunction restraining the defendant No.1 form executing the said degree or from interfering into the peaceful possession of the plaintiff in respect of the suit property in any manner, whatsoever." 10. The main prayer of the appellant/ defendant in the subsequent suit 294 of 1989 is taken in paragraph 16 of the plaint. It is extracted: "That on the basis of the alleged compromise deed the impugned decree has been passed which is vague, illegal, nullity and without jurisdiction and is void abinitio and does not effect in any manner the rights of the plaintiff. The same is inoperative and incompetent. It is also submitted that the court was under legal obligation to draw and pass a preliminary decree in suit for redemption; the court in the instant case did not apply its judicial mind and acted in a mechanical manner which has caused great injustice to the plaintiff. The court of sub-Register even did not comply the mandate of the law as contained under the provisions of 0 34 CPC. In the plaint, defendant No.1 sought the adjustment of mortgage money and rent etc. under the provisions of the Restitution of Mortgaged Property Act, 1976. It may be submitted that the Civil Courts had no jurisdiction under the said Act, it was only the Tribunal constituted under the said Act to adjudicate upon which had exclusive domain in that respect. Even the said Act was not in force at the time of Institution of the suit by defendant No.1 in the court of Sub-registrar, Jammu. (Emphasis supplied) 11. At the time of listing of this appeal before us for admission, counsel for the defendant Mr. Even the said Act was not in force at the time of Institution of the suit by defendant No.1 in the court of Sub-registrar, Jammu. (Emphasis supplied) 11. At the time of listing of this appeal before us for admission, counsel for the defendant Mr. Malik vehemently opposed the maintainability and the admissibility of the appeal and it is how we have heard Mr. Zaffar A. Shah learned counsel for the appellant/defendant and Mr. Malik, learned counsel for the respondent /plaintiff, at length on the point of admissibility and maintainability of the appeal. 12. Mr. Malik strenuously contended that the Jammu and Kashmir Restitution of Mortgaged Properties Act, 1976 is not applicable in the facts of the case at hand as when the suit was filed before Munsiff, the Act was not in force. He also submits that the appeal is barred under Order 23 Rule 3-A of the Civil Procedure Code. He further submits that the compromise decree challenged in the subsequent suit filed by the appellant was incompetent as the same was appealable under Order 43 Rule 1-A Sub-rule (2) of the Code of Civil Procedure. 13. Mr. Z.A. Shah raised the following contentions: a) That the compromise degree passed by the Munsiff on 2-12-1983 is without any jurisdiction in as much as dispute should have been entertained by a Tribunal constituted by the appropriate Government under the Jammu and Kashmir Restitution of Mortgaged Properties Act, 1976 (Act No. XIV of 1976) (in short the Act) and therefore the compromise was not lawful for lack of jurisdiction b) Order 23 Rule 3-A of Civil Procedure Code is no bar if the decree is challenged on the ground of fraud. 14. With regard to the first contention, the submission of Mr. Shah that such dispute should be raised before a Tribunal constituted under, the Act is belied by the statement of the plaintiff defendant in paragraph 16 of the Plaint. It is categorically stated in the last line of paragraph 16 of the plaint, as quoted above that the Act was not in force at the time of institution of the suit by the plaintiff in the court of Sub-Registrar, Jammu. 15. It is categorically stated in the last line of paragraph 16 of the plaint, as quoted above that the Act was not in force at the time of institution of the suit by the plaintiff in the court of Sub-Registrar, Jammu. 15. Section 4 of the Act enjoined the appropriate government by a notification to empower the Tribunal or a Collector or a Chairman of a Debt Conciliation Board appointed under the Debtors Relief Act, 1976 or a Judicial Officer not below the rank of a Subordinate Judge to act as a Tribunal. Section 4 reads: "4. Jurisdiction to hear petitions: the govt. may be notification empower a collector, a chairman of a Debt Conciliation Board, appointed under the Jammu and Kashmir Debtors Relief act, 1976 or a Judicial Officer not below the rank of a subordinate Judge to act as a Tribunal under this Act and may likewise determine the pecuniary and territorial jurisdiction of the officers so empowered. The jurisdiction of the officers so empowered. The tribunal shall while exercising powers under this Act, be deemed to be a court". 16. In terms of Section 4 of the Act, by a Notification SRO 339 dated 31-8-1989, Government has empowered Chairman, Debt Conciliation Board, Jammu, to act as a Tribunal. The Notification reads: - "Government of Jammu & Kashmir Revenue Department. Notification. Srinagar, the 31st August, 1989 SRO-339. In exercise of the powers conferred by Section 4 of the Jammu and Kashmir Restitution of Mortgaged Properties Act, 1976 (XIV of 1976), the Government hereby empower the Chairman, Debt Conciliation Board, Jammu to act as a Tribunal under the said Act having pecuniary jurisdiction upto Rs.10,000/- within the territorial limits of Jammu Division. By order of the Govt. of Jammu & Kashmir." 17. It will clearly appear, therefore, that when the suit 515/1983was filed by the plaintiff/respondent on 3-11 -1983, The Act was not in force. The civil court of competent jurisdiction was holding the field for such dispute till it was eclipsed by the emergence of SRO 339 dated 31-8-1989. Therefore, it cannot be said that the Munsiff has no jurisdiction to try the mortgage suit when restitution of Mortgaged Properties Act, was not in force when such suit was filed on 3-11-1983. The contention of Mr. Shah has miserably failed. Therefore, it cannot be said that the Munsiff has no jurisdiction to try the mortgage suit when restitution of Mortgaged Properties Act, was not in force when such suit was filed on 3-11-1983. The contention of Mr. Shah has miserably failed. His referring to the power of the Tribunal under Section 5 and Section 16 of the Act is clearly mis-conceived and had no relevancy for the purposes of decision of this appeal. 18. Then comes to a bar imposed by Order 23 Rule 3-A if the Civil Procedure Code. Order 23 Rule 3-A reads: - "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" 19. Mr. Shah strenuously contended that the bar imposed by Order 23 Rule 3-A is not applicable in the present case in as much as a compromise decree was obtained by fraud. We have already set out the compromise deed in the foregoing paragraph. It bears the signatures of both the plaintiff and the defendants and their respective counsels. It is an admitted fact that the appellant-defendant is a graduate and well acquainted with the technicalities of the urban life. Before the trial court, he has identified his signatures in the compromise deed dated 2-12-1983. His presence was recorded by the learned Munsiff while passing a compromise decree on the basis of the compromise deed. In the fact of these hard facts, can he now be permitted to say that the compromise decree was obtained by fraud and filed a subsequent suit namely 294 of 1989 on 31-10-1989 with the prayer to set aside the compromise decree dated 2-12-1983 after almost six years. Defendant also engaged the counsel by signing Wakalatnama on 24-11-1983 and on 2-12-1983 he was present with the counsel. We are, therefore, clearly of the view that the appellant has in his own volition signed the compromise deed on 2-12-1983 and compromise decree was passed within his knowledge and consent. The contention of Mr. Shah, counsel for the appellant that the appellant has signed blank paper on 2-12-1983 and to his utter surprise that has been treated as compromise deed when the plaintiff came to dispossess the defendant-appellant sometimes in 1989 is utterly un-believable. It is also contended by Mr. The contention of Mr. Shah, counsel for the appellant that the appellant has signed blank paper on 2-12-1983 and to his utter surprise that has been treated as compromise deed when the plaintiff came to dispossess the defendant-appellant sometimes in 1989 is utterly un-believable. It is also contended by Mr. Shah that the signature of the appellant has been obtained in a blank paper for other purpose and not for a compromise deed, cannot be believed. 20. As already stated that the appellant is a graduate and he is expected to know the consequences of his signatures. It is unbelievable that the appellant an educated person would sign a blank paper without knowing for what purpose it is taken. We can understand if such statement is made by a rustic villager. As already said the appellant did not deny his signature of 2-12-1983 appearing in the compromised deed. This is what appellant has stated in paragraph 19 of the plaint which reads: - "That the plaintiff came to know about the filing of the suit and about passing of the said decree when defendant No.1 came on the shop of the plaintiff six days back threatening him that he also obtained a decree against him and he shall throw the belongings of the plaintiff on the road side, so the plaintiff made inquiries and came to know that in fact defendant No.1 has managed to obtain the decree and had even filed the execution proceedings against the plaintiff in the court of Sub-Registrar, Jammu. 21. The filing of the subsequent suit on 31-10-1989 with the prayer to declare the compromise decree dated 2-12-1983 as null and void being obtained by practising fraud was well an after thought. When the plaintiff came to execute the decree in terms of compromise, as stipulated in Para 3(a) of the compromise deed. His silence for about six years after compromise decree was passed within his knowledge would preclude him from raising a dispute that the compromise decree was obtained by fraud. We are clearly of the view that the compromise envisaged under Order 23 Rule 3-A of Civil Procedure Code was lawful and valid compromise. His silence for about six years after compromise decree was passed within his knowledge would preclude him from raising a dispute that the compromise decree was obtained by fraud. We are clearly of the view that the compromise envisaged under Order 23 Rule 3-A of Civil Procedure Code was lawful and valid compromise. Apart from what has been stated, the appellant has admittedly filed a separate suit for setting aside the compromise decree on the ground that it was obtained by fraud The second suit was clearly incompetent as barred by Order 23 Rule 3-A of the Code The apex court had an occasion to deal with such matter in Bhanwari Lal, Appellant V. Smt. Chando Devi( through L.R) and another, Respondent, AIR 1993 SC 1139 and held in paragraph 13 of the judgment as under:- "When the amending Act introduced a proviso along with an explanation to Rule 3 of 0.23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction had been arrived at, "the court shall decide the question", the court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction has been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with explanation, a Court which has entertained the petition of compromise has to examine whetherthe compromise was void or voidable under the Indian Contract Act. Even R.I (m) of 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging the compromise can file a petition under proviso to R.3 of 0 23 or an appeal under S.96 (1) of the code, in which he can question the validity of the compromise in view of R.1-Aof 043 of the Code. 22. As such a party challenging the compromise can file a petition under proviso to R.3 of 0 23 or an appeal under S.96 (1) of the code, in which he can question the validity of the compromise in view of R.1-Aof 043 of the Code. 22. Therefore, in our opinion, even if assuming that the compromise decree was obtained by fraud, it was open to the appellant-defendant to either file an application under Order 23 Rule 3 or an appeal under Section 96(1) of the Code or an appeal under Order 43 Sub-Rule (2) of the Rule 1-A. Learned counsel for the appellant has referred to decisions, Rama Krishan Swain, Appellant V. Smt. Fulamani Kamila and another, Respondent, AOR 1975, Orissa 166, Gosto Behari Pramanik, Petitioner vs. Smt. Malati Sen and others, Respondents, AIR 1985 Calcutta 379 and S.G.Thimmappa Appellant V.T.Anantha and others Respondent, AIR 1986 Karnataka 1. These decisions referred to above are of no help to the appellants case in view of the decision of the Supreme Court. 23. There is yet another hurdle for the appellant. We have held that the compromise decree was passed on 2-12-1983 with the consent and knowledge of the appellant. He has filed subsequent suit No. 294 of 1989 on 31-10-1989 after almost six years on the ground that the compromise decree was obtained by practising fraud. Article 66 of the Jammu and Kashmir Limitation Act, 1995(1938 A.D) prescribes 3 years limitation to set aside the decree obtained by fraud or other relief on the ground of fraud. It is further provided that the period of three years would be reckoned from the date when the fraud becomes known to the party wronged. We have already held that the compromise decree dated 2-12-1983 was passed with the knowledge and consent of the appellant. Therefore, filing the subsequent suit on 31 -10-1989 with the prayer to set aside the decree obtained by fraud was clearly barred by limitation. On this ground also, subsequent suit was not maintainable. 24. Having said so, the doctrine that the litigation must terminate at one point is based on sound public policy. One of the methodologies, infact the cheapest methodology, to terminate the dispute is by way of entering into compromise decree. On this ground also, subsequent suit was not maintainable. 24. Having said so, the doctrine that the litigation must terminate at one point is based on sound public policy. One of the methodologies, infact the cheapest methodology, to terminate the dispute is by way of entering into compromise decree. The legislature intended to encourage compromise decree is well demonstrated under Order 23 Rule 3-A Considering the fact that even century old civil disputes are pending in various courts, The Court must be sensitized and kept alive to the problems faced by the court as well as litigant parties. Decree passed on compromise satisfy two tests. Firstly it satisfies both the parties and secondly it terminates the disputes quickly and cheaply. No party to a compromise decree should be encouraged to resile from the compromise decree unless the conditions precedent provided under Order 23 Rule 3-A are fulfilled. 25. In a civil dispute, apart from the point of law, the conduct of the parties is very important in deciding the contentious issues. From the facts adumberated above, it would clearly demonstrate that the appellant-defendant is cantankerous litigant. He, of his own sweet will signed compromise deed and a compromise decree was passed on the basis of it. He, there-after feigning ignorance of his own knowledge and consent, filed the subsequent suit claiming that the compromise decree was obtained by fraud which plea has been dismissed by both the courts below, yet filed the present appeal before this court pursuing meritless, vexatious and frivolous litigation. Such proceedings not only stall the proceedings of the court but also create more problems than solving it. In the given circumstances, we are of the view that the respondent-plaintiff is entitled to costs. 26. In the result, this appeal being devoid of merit is not maintainable and is accordingly dismissed with costs throughout.