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2005 DIGILAW 323 (PNJ)

Wassan Singh v. Lakha Singh

2005-03-01

HARJIT SINGH BEDI, VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. The applicant-appellants filed the present application seeking review of the order dated May 14, 2002 passed by the learned Single Judge. 2. Regular Second Appeal No. 4311 of 1986 filed by the present applicants, Wassan Singh and another was disposed of in terms of compromise arrived at between the parties and suit of the non-applicant/plaintiffs i.e. Lakha Singh and others was dismissed. It was further ordered that the compromise (Annexure C") shall form part of the decree. 3. A suit for possession of the land measuring 26 kanals 8 marlas was filed by Lakha Singh and Mukha sons of Arjan Singh, Smt. Giano and Mohindro daughters of Arjan Singh against Wassan Singh and Ram Singh sons of Manna Singh and others. The aforesaid suit was decreed by the learned trial Court vide judgment and decree dated April 15, 1985. Defendants Wassan Singh and others went in appeal. The aforesaid appeal was dismissed by the learned Additional District Judge vide judgment dated October 29, 1986. The defendants approached this court through Regular Second Appeal No. 3411 of 1986. During the course of appeal, the matter was compromised through Annexure C and accordingly disposed of on August 13, 1998 in terms of compromise. Consequently, the suit of the plaintiffs Lakha Singh and others was dismissed. A Civil Miscellaneous Application No. 3325-C of 2000 was filed by Lakha Singh and others. It was claimed that the order dated August 13, 1999 passed by the Court be recalled as the aforesaid order had been obtained by fraud and misrepresentation. It was further claimed that the appeal be decided on merit. Various reasons were given by the applicants to recall the aforesaid order dated August 13, 1999 which may briefly noticed as follows:- i. The plaintiffs-respondents No. 1 had never appointed Jaspal Singh son of Makhan Singh as their general power of attorney on 1.4.1992 or any other date. In fact no such general power of attorney had been placed on the record of the case at any stage of the proceedings. Said general power of attorney has not been brought on record even alongwith the compromise. Said Jaspal Singh thus has no right to enter into any compromise on behalf of the plaintiffs-respondents. The compromise is thus void ab initio. ii. Mahindero, plaintiff-respondent No. 4 had died on 29.1.1998. Said general power of attorney has not been brought on record even alongwith the compromise. Said Jaspal Singh thus has no right to enter into any compromise on behalf of the plaintiffs-respondents. The compromise is thus void ab initio. ii. Mahindero, plaintiff-respondent No. 4 had died on 29.1.1998. The compromise (Annexure-C) was also shown to have been entered on her behalf. Any compromise on behalf of a dead person is a nullity. iii. That plaintiff-respondents had changed their counsel in the High Court during the course of the appeal and new Counsel Shri D.S. Pheruman, Advocate, had filed various applications on their behalf. However, the compromise had been shown to have been signed by another Counsel and no notice had ever been served upon Shri D.S. Pheruman, Advocate. iv. That no compromise was in fact ever entered between the plaintiff-respondents and the defendant-applicants. The compromise Annexure-C is a forged and fabricated document. v. That a fraud had been committed and order dated 13.8.1999 was obtained by practicing a fraud upon this Court and as such the aforesaid order was liable to be recalled in exercise of inherent jurisdiction. 4. The aforesaid application filed by the applicant was contested by the appellants. Various grounds were taken to contest the same. Jurisdiction of this Court in entertaining the aforesaid application was also questioned. It was claimed that the aforesaid compromise could only be challenged by way of a separate suit and not through any application filed under Section 151 of the Code of Civil Procedure. 5. After taking into consideration the various contentions raised by the learned counsel for the parties, the learned Single Judge rejected the claim of the appellants (the present applicant) that the aforesaid order dated August 13, 1999 could not be recalled by way of an application or that the only remedy available was the filing of a civil suit for determining the question as to whether the compromise was lawful and had not been induced by fraud and whether the same was binding upon the plaintiff including the legal representatives of the deceased-plaintiff. Further proceedings were ordered to be taken. 6. The applicants have now approached this Court through the present review application seeking review of the aforesaid order dated May 14, 2002. 7. Further proceedings were ordered to be taken. 6. The applicants have now approached this Court through the present review application seeking review of the aforesaid order dated May 14, 2002. 7. At this stage, it may be relevant to notice that since the learned Single Judge has since retired, therefore, the matter has been placed before the Division Bench for considering the review application. 8. Shri Munishwar Puri, learned counsel for the applicant has again pressed into service the various contentions raised by him before the learned Single Judge. It has been vehemently argued by the learned counsel that the order dated August 13, 1999 passed by this Court, finally disposing of the regular second appeal on the basis of the Annexure C could not have been questioned by the aforesaid applicant-respondents inasmuch as the only course open to challenge the aforesaid compromise was by way of filing a separate civil suit. In support of the aforesaid contentions, learned counsel has relied upon the following judgments:- 1. Kewal Krishan V/s. Shiv Kumar, AIR 1970 P&H 176 2. Laraiti Dei V/s. Sia Ram, AIR 1957 All 820, 3. Phoosa Lal Mansinghka V/s. Commissioner of Income Tax, AIR 1957 All 823, 4. Binodilal Bishambhardayal V/s. Virendrasingh Anandrao, AIR 1958 MP 391, 5. Jugalkishore Kabra V/s. Municipal Committee, AIR 1958 MP 393, 6. Kishori Mukhi V/s. Dhaneswar Sabu, AIR 1962 Ori 110, 7. Bank of Bihar V/s. Mahabir Lal, AIR 1964 SC 377, 8. Shabbir Ali Hussain V/s. Janaba Sartaj Jaha Begum, AIR 1953 Hyd 128 9. We have been given our due consideration to the various contentions raised by the learned counsel for the applicant-appellant and have also gone through the law cited by him. 10. At the outset we may notice that the provisions of Civil Code Procedure were amended by Act 104 of 1976 with effect from 1.2.1988 and Rule 3A was added to Order 23 C.P.C. Rule 3A reads as under:- "3A. Bar to suit: No suit shall lie to set aside the decree on the ground that the compromise of which the decree is passed was not lawful." 11. It is thus apparent that in view of introduction of Rule 3A in the year 1976, the challenge to the compromise can be entertained by the Court passing the aforesaid compromise order and not through separate proceedings in a civil suit. It is thus apparent that in view of introduction of Rule 3A in the year 1976, the challenge to the compromise can be entertained by the Court passing the aforesaid compromise order and not through separate proceedings in a civil suit. The various judgments relied upon by the learned counsel for the applicants are prior to the aforesaid amendment. 12. To be fair to the learned counsel we may notice a judgment relied upon by him in Ram Kishan and Ors. V/s. Sardari Devi and Ors., 2003 1 CCC 11. In the aforesaid judgment it was noticed by this Court that the suit challenging a compromise decree on the ground that it was obtained by misrepresentation and fraud was maintainable. However, the said judgment has nowhere laid down that the Court is debarred from exercising its inherent jurisdiction to set aside a compromise decree obtained by a party by playing fraud, coercion or undue influence. In fact the learned Single Judge in Ram Kishans case (supra) has relied upon the observations made by a Division Bench of this Court to hold that a separate suit was maintainable. The aforesaid observation of Division Bench may be noticed as follows:- "The words "not lawful" occurring in Rule 3-A of Order 23 of the Code have wider content than similar words in the Explanation to Rule 3. The Explanation to Rule 3 deals with agreements or compromises which are not to be deemed to be lawful if they were void or avoidable under the Indian Contract Act, 1972, but the agreements or compromise which are not lawful as referred to in Rule 3-A are more general in terms and are not engrafted by the limitations as inserted in the Explanation appended to Rule 3. If the agreement or compromise if not the result of consensus of mind of two persons in regard to certain matters, viz. when the consent of one of them to the terms is obtained by the other by some illegal means, namely, by fraud, coercion or undue influence, there is in fact no compromise. Rule 3-A does not bar the maintainability of the suit challenging the compromise on these grounds. However, the Court can in exercise of its inherent jurisdiction also relieve the party alleging fraud coercion or undue influence of the agreement. Question No. 1 is answered accordingly." 13. Rule 3-A does not bar the maintainability of the suit challenging the compromise on these grounds. However, the Court can in exercise of its inherent jurisdiction also relieve the party alleging fraud coercion or undue influence of the agreement. Question No. 1 is answered accordingly." 13. In view of the aforesaid law and in view of the specific language of Rule 3A of Order 23, it is apparent that the application filed by the applicant-respondent before the learned Single Judge was wholly maintainable and it was not required of them to file a separate suit only. In view of the aforesaid discussion, we dismiss the present review application. Further proceedings in the case may be taken before the learned Single Judge, as per roster in terms of order dated May 14, 2002. Office may fix the date after informing the learned counsel for the parties.