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2007 DIGILAW 426 (AP)

A. Rajeshwar Rao v. Hasan Ali Khan

2007-04-18

B.PRAKASH RAO

body2007
ORDER :-Since these two revisions arise out of the same proceedings in one suit, they are taken up together for disposal. 2. Heard Sri D. Prakash Reddy, learned Senior Counsel on behalf of Sri M.S. Ramachandra Rao, learned Counsel appearing for the petitioners and Sri M.V.S. Suresh Kumar, learned Counsel appearing for the respondent. 3. The petitioners in both these revisions are the plaintiffs in the Court below, who seek to assail the orders dated 5-1-2004 in I.A. No.1317 of 2000 and also the consequent orders passed in I.A. No.1233 of 2000 in O.S. No.217 of 1999 on the file of the II Additional District Judge, Ranga Reddy District at Hyderabad. 4. Briefly stated the facts of the case without going into much details as to the chequered events and also various pleas as raised on behalf of both the sides on merits, it would suffice for the purpose of disposal of these revisions are that the petitioners/plaintiffs filed the present suit, inter alia, to declare that they are the assignees of the decree i.e., 14/104th share of the defendant, who is the third defendant in O.S. No.42/62 on the file of the First Additional Senior Civil Judge, City Civil Court, Hyderabad in respect of Item No.6 of the plaint B schedule property in that suit, which is the plaint schedule property in the present suit and for consequential perpetual injunction as against the respondents/ defendants and their men from causing any interference in peaceful possession and enjoyment of the said schedule property consisting of Acs.06.00 in S. No.70 of Serilingampally Village. The present proceedings arise on filing of an application in I.A. No.1233 of 2000 seeking to record the compromise as alleged to have been entered into between these parties. The said petition was filed on 30-6-2000. Earlier one I. Ramesh, Advocate filed his vakalat and appearance on behalf of the respondent/defendant. The matter was coming up for filing written statement from 15-3-2000 to 3-7-2000 and at that stage, in this application filed under Order 23 Rule 3 CPC, a compromise memo dated 28-6-2000, which is marked as EX.B 1 was filed. On filing of the said application, the proceedings as recorded in the docket of the suit shows to the following effect: "The written statement of defendant filed. On filing of the said application, the proceedings as recorded in the docket of the suit shows to the following effect: "The written statement of defendant filed. Simultaneously both parties filed petition under Order 23 Rule 3 requesting the Court to decree the suit bearing No.217 of 1999 in terms of compromise as arrived between the parties. Plaintiff No.30 present. He filed the power of attorney (unregistered notarized) along with the petition in S.R. No.12353 of 99 was filed before the Principal District Court and the same was permitted. Plaintiff No.30 on behalf of plaintiff Nos. 1 to 29 of power of attorney present. Their Counsel present. Defendant in person and his Counsel present and both parties admitted the terms of compromise which are read over to them. For hearing the maintainability about the compromise petition call on 3-7-2000." 5. Thus, on the said date, the compromise was not recorded but it was adjourned for hearing and maintainability. At a later stage, the present application has been filed by the respondent herein in I.A.NO.1317 of 2000 to dismiss the earlier application in I.A. No.1233 of 2002, which has been filed for the purpose of recording the compromise, inter alia, principally contending that there has been a fraud which has been played on the respondent since the signatures were taken on blank stamp papers stating that a compromise petition has to be filed in respect of the property, which situated in Vatte Nagulapally Village and the said compromise was not presented through an Advocate and they also took the signatures of an Advocate on vakalat of whose name he was not aware nor he had seen. Therefore, the present application is now one for totally different properties situated in Madhapur Village. Thus, there has been a total misrepresentation and the entire compromise recorded is vitiated. Further, the draft compromise was brought and took his signatures on 30-6-2000. While he was reading the compromise after making signatures, the same papers were snatched away from him and therefore, he could not fully ascertain the nature of the property. It was stated that to the utter surprise, the photographs were sought to be taken while he was making his signatures in the document in the Court premises on 30-6-2000 apparently for the purpose of identity. It was stated that to the utter surprise, the photographs were sought to be taken while he was making his signatures in the document in the Court premises on 30-6-2000 apparently for the purpose of identity. Therefore, with these and other doubtful circumstances surrounding the said compromise, the same is not valid and therefore, cannot be recorded. Hence, the application. 6. Contesting the same, the case of the petitioners was that of total denial as to the various allegations in regard to the alleged fraud or misrepresentation. In fact, it was stated that the compromise was entered into by the respondent with full knowledge and he was aware of all the contents and further he himself was present in the Court when the compromise petition was filed and the same was duly recorded apart from signing by himself and the Counsel on the docket proceedings and therefore, there cannot be any sort of doubt as to the identity of the property or even as to the Counsel representing him. Therefore, now the said compromise, which has been duly entered into between the parties, cannot be allowed to be gone back. 7. The respondent has also filed a reply to the said allegations contained in the counter-affidavit further pointing out that in. fact, no suit summons have been received by him and even before any such exercise, there have been attempts to obtain certain documents which are not valid in law in regard to the assignment in violation of Section 17 of the Registration Act. Further, he again reiterated that he was given impression that the compromise related to the land in Vatte Nagulapally Village and therefore, there has been a total misrepresentation. 8. The Court below conducted a detailed enquiry where both the sides let in their respective evidence. The respondent was examined as P.W.1 and marked Exs.A1 to A8 whereas on behalf of the petitioners, R.Ws.1 and 2 were examined and Exs.B1 to B3 were marked. 8. The Court below conducted a detailed enquiry where both the sides let in their respective evidence. The respondent was examined as P.W.1 and marked Exs.A1 to A8 whereas on behalf of the petitioners, R.Ws.1 and 2 were examined and Exs.B1 to B3 were marked. On appraisal thereof, the Court below found that having regard to the fact that there was no recording of compromise and in view of the serious allegations as to playing of fraud as to the very identity of the property which is not specific in the compromise though it has been categorically describing in the suit and therefore, the respondent was not aware of the property in respect of which the compromise is being entered into, allowed the application filed by the respondent herein in seeking to dismiss the application in I.A. No.1233 of 2002, which was the compromise petition filed in the main suit. Hence, these revisions. 9. Sri D. Prakash Reddy, learned Senior Counsel appearing on behalf of the petitioners strenuously by taking this Court through the entire material on record, submitted that having regard to the filing of the compromise petition in the presence of the parties and as recorded by the Court below and as evident from the Court docket, it is not open to the respondent herein to go back of the said terms as agreed to and merely it was adjourned for the purpose of recording, the respondent cannot resile from the terms agreed which has become final. Further, it is also mentioned that the grounds mentioned in the affidavit are totally different from the findings or the reasons, which have been given ultimately to allow the application filed by the respondent herein. Further, it is also their case that the fraud has not been properly pleaded nor established nor there is any finding as to illegality in regard to the compromise and there is no finding on the very reasons came out from the respondent. 10. Further, it is also their case that the fraud has not been properly pleaded nor established nor there is any finding as to illegality in regard to the compromise and there is no finding on the very reasons came out from the respondent. 10. Sri M.V.S. Suresh Kumar, learned Counsel appearing on behalf of the respondent herein repelling the aforesaid contentions, submitted that having regard to the finding of fact as arrived at by the Court below with valid reasons in support the compromise cannot be accepted and the Court below has rightly rejected the same and therefore, no valid reason has been made out on behalf of the petitioners to seek any interference by this Court. 11. With these and other submissions made by both the sides, the only point that arises for consideration is as to whether the refusal on the part of the Court below in recording the compromise filed by the parties and rejecting the same at the instance of the respondent on the ground of fraud land misrepresentation is valid? 12. As already stated, there is no serious dispute in regard to the chequered events till the stage of filing of the alleged compromise. It is to be seen as to whether there is any reason to accept the version of the respondent as to fraud played by the petitioners against him. At the outset, it is to be noted that the suit schedule land is situated in S. No.70 in Madhapur Village and as pointed out by the Court below the respondent is sufficiently aged and senior citizen above 70 years even by the date of filing of the suit in the year 1999. In regard to the specific observation made by the Court below to the effect that in the compromise memo Ex.B.1, the details of identity of the property has remained unexplained by the petitioners in these proceedings. It has been pointed out that though the plaint schedule property described the suit property as Acs.06.00 with specific boundaries, however, no such particulars, details or other identifiable aspects are shown in specie in EX.B 1-compromise memo. It is this particular circumstance, which weighed with the Court below to find that apparently the respondent is not aware of the property as mentioned in the compromise entered into. It is this particular circumstance, which weighed with the Court below to find that apparently the respondent is not aware of the property as mentioned in the compromise entered into. There is no dispute to the fact that the other properties are situated in Vatte Nagulapally Village and in respect of which certain disputes are existing and the respondent was under the impression that it is this property that the matter is being sought to settle whereas ultimately it turned out to be a different property situated at Madhapur. There is no dispute that in respect of these two properties, a lis is pending though in different Courts but it cannot be said that as to why and how such hurried compromise to be ushered in without following the due procedure and ascertainment of the details of the property and making the parties aware of the same. Admittedly, the suit summons were not served on the respondent herein even on the date of filing of the compromise memo in EX.B 1 as noted in the Court docket. Except recording the presence of the parties and filing of the said compromise, the same has remained unrecorded as to its own satisfaction in regard to the verification of the compromise and terms contained there with the parties and the ultimate satisfaction which a sin qua non for recording of any compromise under Order 23 Rule 3 of CPC. It is this requirement, which is an ultimate one and which in fact should put a final seal on any compromise i.e., entered into between the parties. As long as there is no such recording of satisfaction and recording of compromise, it cannot be said that the alleged compromise becomes final, conclusive and binding. The respondent has come out with valid reasons, which amply throw a doubt on the very attempt in the process of trying to record the alleged compromise. Though across the Bar various decisions have been cited, it is now well established that the fraud vitiates the entire proceedings. It is always open to the parties, who are affected by any such fraud or misrepresentation, to come before the Court and establish. Though across the Bar various decisions have been cited, it is now well established that the fraud vitiates the entire proceedings. It is always open to the parties, who are affected by any such fraud or misrepresentation, to come before the Court and establish. Having regard to such finding of fact as arrived at by the Court below, who has gone in depth in regard to various surrounding circumstances and noted specifically that there is a hurried way of engaging a Counsel and the said compromise is unreasonable though it has taken note of increasing the market value. Further, having noted that it was not recorded and the matter was adjourned for the purpose of hearing and maintainability of the compromise petition which itself can invite every other aspect which possibly to be verified, ascertained or gone into or considered by the Court before putting a final seal of recording the same. Having regard to the well reasoned finding which is purely that of on facts and more so where a party, comes out with a serious complaint as to the fraud and misrepresentation, the Court should be slow in accepting such compromise. In fact, when the parties contesting in respect of substantial properties involving substantive rights, it should be the endeavour of the Courts to see that the parties should receive final orders only after due enquiry with sufficient opportunity to all of them and on merits rather than allow a tainted or clouded acts of alleged compromise to have a final say. In these circumstances, I do not find any merits in both the revisions. 13. The civil revision petitions are dismissed. No costs.