Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 1145 (DEL)

Som Nath Setia v. Ravi Setia

2008-12-10

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: 1. By this second appeal, the appellant has assailed the judgment of the appellate court dated 24th March 2006 whereby the appeal of the appellant was dismissed. Since the second appeal can be preferred only on the substantial question of law in terms of Section 100 of Civil Procedure Code (CPC), the appellant in memo of appeal has framed following questions: A. Whether a Decree passed solely on the basis of admissions made in the written statement, admitting the entire claim in the Plaint, can be treated as a Compromise decree B. Whether a Decree, passed as aforesaid (A) can be termed as a Compromise Decree, when there has been no application in writing and signed by the parties, confirming to the mandatory requirements of Order 23 Rule 3 CPC C. Whether a decree can be termed as a compromise decree, when the compromise has not been recorded by the court to is satisfaction, as contemplated by Rule 3 of Order 23 CPC D. Whether a suit challenging a decree (not a compromise decree under Order 23 Rule 3 CPC) obtained by fraud, is barred under Rule 3 A of Order 23 CPC E. Whether a decree can be passed by a court at Pili Banga, Distt. Hanuman Garh, Rajasthan, in respect of a property situated in Delhi and would such a decree be not a decree, without jurisdiction and a nullity and would be coram non judis F. Whether a decree can be passed on the basis of an alleged family settlement, which is though forged but otherwise written on plaint sheet of paper and not registered and parties to the said alleged settlement are not part of the same family and have no antecedent, title, claim or interest in the said property G. Whether the court can dismiss a suit on the ground of jurisdiction, when neither such an issue arose from the pleadings nor the court framed such an issue 2. It would be necessary to have a brief overview of the facts before considering whether any of the questions raised by the appellant in this appeal are really questions of law and if they arise or not. It would be necessary to have a brief overview of the facts before considering whether any of the questions raised by the appellant in this appeal are really questions of law and if they arise or not. Respondent No.2 Surendra Kumar had filed a suit before the Civil Court, Pilli Banga, Hanuman Garh, Rajasthan pleading therein that there was a family settlement in respect of the joint properties belonging to parties entered into on 5th November 1993 between respondent No.2 and the present appellant and respondent No.1 Ravi Setia. The subject matter of this settlement were properties in Delhi and Rajasthan. He wanted a declaration from the Court that the parties had become owners of the properties as given in the family settlement by virtue of family settlement and the property in Delhi be divided in terms of the settlement and given to the respective owners. During the pendency of this suit, a compromise decree was passed on the basis of the statements made by the plaintiffs and the attorney of the present appellant in the court. The Civil Judge, Junior Division, Pilli Banga, Rajasthan, decreed the suit in terms of the compromise after recording statements of parties/their attornies passing following order, The suit is decreed as per the family settlement between the parties and the family settlement shall form part of the decree and the decree sheet be prepared. 3. The appellant herein filed a suit in Delhi for declaration and cancellation of documents and permanent injunction before the Civil Judge, Delhi seeking a declaration that the family settlement dated 5th November 1993 was null and void and the decree dated 12th December 1996 passed in Civil Case No. 25 of 1996 by the Civil Judge, District Hanuman Garh, Rajasthan was invalid and null and void; the respondent No.1 and 2 be restrained from acting on the family settlement and the decree. The learned Civil Judge, Delhi vide its judgment came to conclusion that the suit was not maintainable before the Civil Judge, Delhi in view of the provisions of Order 23 Rule 3A of CPC. The learned Civil Judge, Delhi vide its judgment came to conclusion that the suit was not maintainable before the Civil Judge, Delhi in view of the provisions of Order 23 Rule 3A of CPC. The remedy available for the appellant was to move an application under proviso of Order 23 Rule 3 CPC before the Court who passed the decree or to prefer an appeal under Section 96(1) and Order 43 Rule 1 (i) and (ii) of CPC before the Court competent to hear the appeals against the order of Civil Judge, Pilli Banga, Rajasthan questioning the validity of the compromise. The first appellate Court also dismissed the appeal observing that if the decision from the Court at Pilli Banga had been obtained by playing fraud, the same can be set aside only by filing an appropriate application before the concerned court and the appellant who himself is an advocate should have approached the court concerned i.e. Civil Judge, Pilli Banga to get the decree dated 12th December 1996 set aside on the ground that a fraud has been played on the Court. Merely because one of the properties was situated in Delhi would not mean that the suit for declaring the decree of the Court in Rajasthan would be maintainable in Delhi. The first appellate court dismissed the appeal. 4. It is apparent from the decision of the Civil Judge and the First appellate court that none of the issues framed by the appellant in paragraph above arise out of the judgment of the two courts below. The appellant in fact had not framed questions of law but has framed the questions arising out of the facts of the case as pleaded by him before the Court below and none of these questions could have been gone into by either the Civil Judge Delhi or by the first appellate court, Delhi unless the two courts had come to conclusion that the suit was maintainable in Delhi. Since the two courts came to conclusion that the suit itself was not maintainable in Delhi, the issues or the questions framed by the appellant in this second appeal do not arise. Neither these questions can be considered by this Court in second appeal. 5. The only question which the two courts below decided was about the maintainability of the suit in Delhi. Neither these questions can be considered by this Court in second appeal. 5. The only question which the two courts below decided was about the maintainability of the suit in Delhi. The appellant has framed a question that the Court below could not have dismissed the suit on the ground of jurisdiction since this issue had not arisen out of the pleadings of the appellant nor the issue was framed. 6. I consider that the appellant has deliberately overlooked the provisions of the Order 7 Rule 11 of CPC. Order 7 Rule 11 casts a duty upon the Court to reject the plaint if the plaint does not disclose a cause of action or if it is beyond the jurisdiction of the Court. A court has to entertain the suit which falls within its jurisdiction and it can grant effective relief. If the matter is beyond the jurisdiction of the Court or the Court cannot grant effective relief, the Court is bound to return the plaint or reject the plaint, whether or not the plaintiff has raised this plea in the pleadings. It is the duty of the Court to go through the pleadings in the plaint at the time when plaint is presented and to see if the suit can be entertained by the Court or not and it should order issuance of summons to the opposite side only after satisfying itself that the suit was maintainable before it. It is not necessary for the Court to first ask the defendant to appear before him and raise objections about the maintainability and then return the plaint to the plaintiff on the ground that the suit was not maintainable. 7. The two courts below have relied upon the provisions of Order 23 Rule 3 CPC and came to conclusion that where a compromise decree is passed under Order 23 Rule 3 by the Court at Rajasthan, the remedy available to the appellant is only at Rajasthan and not in Delhi. Order 23 Rule 3A specifically provides that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. A compromise may not be lawful for various reasons including fraud or consent having been obtained by deceit or by coercion etc. The Supreme Court in Pushpa Devi Bhagat (dead) Through Lr. A compromise may not be lawful for various reasons including fraud or consent having been obtained by deceit or by coercion etc. The Supreme Court in Pushpa Devi Bhagat (dead) Through Lr. Sadhna Rai(Smt.) v Rajinder Singh and Ors (2006) 5 SCC 566 observed 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) Rule 1 Order 43. (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 of 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. 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 second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code. 8. I consider that no substantial question of law arises in this case. The law is well settled and the trial court as well as the first appellate court below followed law in its entirety. I find no merits in this appeal. The appeal is hereby dismissed with costs. The costs are quantified at Rs.40,000/-.