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2004 DIGILAW 1228 (PAT)

Sukilal Mistri v. Harilal Mistri

2004-12-10

S.N.HUSSAIN

body2004
Judgment S.N.Hussain, J. 1. Heard learned counsel for the parties. 2. The petitioners were plaintiffs of Title Suit No. 418/1992 which was filed for declaration of title and other consequential reliefs. 3. The petitioners are aggrieved by order dated 26.9.2003 passed in Misc. Case No. 83/1994 by which the learned Munsif, Araria, has set aside the decree dated 3.5-.1994 passed in the aforesaid suit in terms of compromise arrived at between the parties. 4. The learned counsel for the plaintiffs-petitioners submits that in the said suit a compromise petition was filed duly signed by all the parties concerned whereafter the defendant-opposite party also deposed as DW 1 on 3.5.1994 (Annexure-3/1) stating that the suit has already been compromised and he has signed and filed the compromise petition, according to his own free will. Thereafter, a decree of compromise was passed by the learned Court below on 3.5.1994 itself. This decree was challenged later by the said defendant who filed Misc. Case No. 83/1994 for setting aside the compromise decree on the ground that a fraud has been committed upon him ad also claimed that he had neither signed the compromise petition nor he had ever deposed before the learned Court below. On the basis of the said submissions the learned Court below passed the impugned order setting aside the compromise decree. 5. The learned counsel for the petitioners submits that the claim of the opposite party was contradictory in nature and there was no material before the learned Court below which supported the baseless claim of the defendant, who himself, according to his own free will, signed the compromise petition and deposed before the Court. The learned counsel for the petitioners further submits that without verifying the genuineness of the signature of the defendant Harilal Mistri over the compromise petition and also on the deposition in the Court, the learned Court below should not have passed such order as there was no material to contradict the same and hence she claims that the impugned order is illegal and perverse. 6. 6. On the other hand, the learned counsel for the defendant-opposite party vehemently opposes the said submissions of the learned counsel for the petitioners and placed certain portions of the impugned order which show that after seeing the compromise petition the defendant Harilal Mistri had said that this was not his signature and also said that he had never deposed before the Court below. He had relied upon another portion of the impugned order in which the learned Court below had expressed its doubt about the statement of the said defendant that the compromise petition was executed by him. He also submitted that the learned Court below had also expressed its doubt about the deposition of the defendants counsel that defendant had signed the compromise in his presence and he also signed the said petition as his counsel. He also referred to another portion of the impugned order which says that even if the signature of Harilal Mistri is proved to be correct, even then the claim of the said defendant of coercion and undue pressure remains as he was the purchaser of the land. The learned counsel for the opposite party also relied upon a decision in the case of Banwari Lal V/s. Smt. Chando Devi (through LR) and Anr., reported in 1993 BBCJ SC 34, according to which a fraud vitiates a compromise decree and in case it is proved the decree has to be set aside. The learned counsel for the opposite party further relies upon on the explanation as provided under Order XXIII Rule 3, CPC that an agreement of 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. 7. After hearing the learned counsel for the parties and after perusing materials on record, it is quite apparent that the defendant-opposite party has filed the petition in the Court below on two grounds. Firstly, that neither he had signed the compromise petition nor he had appeared to depose before the Court and secondly, that the signature has been obtained from him on blank paper by coercion and undue pressure. Both the contentions are contradictory and opposite to each other which tend to show frivolity of the claim of the defendant-opposite party. Firstly, that neither he had signed the compromise petition nor he had appeared to depose before the Court and secondly, that the signature has been obtained from him on blank paper by coercion and undue pressure. Both the contentions are contradictory and opposite to each other which tend to show frivolity of the claim of the defendant-opposite party. However, when the said defendant-opposite party had specifically denied his signature over the compromise petition and deposition in the Court, it was incumbent upon the learned Court below to get his signature verified from the experts and mere submission of coercion and undue pressure can not be legally held to be valid unless it is fully proved. But here in this case it is quite apparent that there is nothing to show undue pressure or coercion by the plaintiffs on the said defendant. Merely filing of some cases do not amount to any coercion or undue pressure as in case of any criminal activities, such cases have to be filed and as such they can not be termed to be coersive etc. 8. In the aforesaid circumstances, the impugned order of the learned Court below is set aside and the matter is remanded to the learned Court below to consider the entire matter afresh after taking all the necessary steps as indicated above and decide the same in accordance with law preferably within a period of two months. 9. With the aforesaid observation/directions, this civil revision is allowed.