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2008 DIGILAW 1888 (PNJ)

Jugal Kishore Somani v. Raja Ram

2008-11-10

H.S.BHALLA

body2008
Judgment H.S.Bhalla, J. 1. By this common judgment, I shall be disposing of three petitions, being Civil Revision Nos. 2385, 2388 and 2387 of 2007 together since the point involved in these petitions is identical in nature. However, for the sake of convenience, facts are being extracted from Civil Revision No. 2385 of 2007. 2. Having lost battle before the lower court, the petitioners have knocked at the door of this court by filing the instant revision petition by virtue of which, they have challenged the order dated 23.1.2007 passed by the Civil Judge (Senior Division), Hisar. The operative part of the impugned order dated 23.1.2007 runs as under : "In all the afore-mentioned authorities, either there was a civil suitor execution petition or some misc. proceedings are passing an order or ward by the Motor Accident Claims Tribunal. In none of the cases the order was passed on an application filed under Section 151 CPC. In my view, to challenge a judgment and decree passed by the court of competent jurisdiction another civil suit has to be instituted. In other words, the application under Section 151 CPC for setting aside the judgment and decree is not maintainable. A civil suit however is maintainable. For the reasons recorded above the application in hand is hereby dismissed. File be consigned to the record room, after due compliance. Announced. 23.1.2007 Sd/- Civil Judge (Senior Division) Hisar." The brief facts leading to the present case are that respondent, namely, Raja Ram filed a suit for declaration with regard to the disputed land impleading Gulab Chand, Sagar Mal sons of Moti Lal, Ram Parshad (father of the present petitioners), Ram Niwas both sons of Prem Sukh Dass and Laxmi Narain son of Manak Ram as defendant Nos. 1, 2, 3, 4 and 5. A settlement took place between the parties and by virtue of the aforesaid settlement, Gulab Singh and others have relinquished their interest in terms of cash money. Ultimately, a decree dated 3.5.1983 was passed by the Senior Sub Judge, Hisar, which runs as under : " Keeping in view of the statement of the defendant(s) the suit of the plaintiff(s) is hereby decreed as prayed for with no order as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance. Announced in the open court 3.5.1983 Sd/- Senior Sub Judge, Hisar." 3. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance. Announced in the open court 3.5.1983 Sd/- Senior Sub Judge, Hisar." 3. The petitioners moved an application under Section 151 Civil Procedure Code, for setting aside the judgment and decree dated 3.5.1983, wherein they have also attached the death certificate of Gulab Chand, Sagar Mal, Ram Parsad, Ram Niwas and Laxmi Narain and categorically pleaded that when the petitioners, who are the sons of Ram Parshad Somani, who has been shown as defendant No. 3 in Civil Suit No.750 of 1983, came to know about the fraud played by the respondent, they moved an application under section 151, Civil Procedure Code, before the Civil Judge (Senior Division), Hisar with a prayer that the decree dated 3.5.1983 passed in Civil Suit No. 750 of 1983 titled as Raja Ram v. Gulab Chand and others be set aside since the same is result of fraud and misrepresentation, inasmuch as Gulab Chand, Sagar Mat, Ram Prasad, Ram Niwas and Laxmi Narain who were added as defendants and whose land have been grabbed by virtue of the aforesaid decree, never appeared before the Civil Court nor they filed written statement because the aforesaid persons had died long back much prior to the filing of the civil suit by the respondent. However, this application under Section 151, Civil Procedure Code, was dismissed by the impugned order. 4. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 5. I have given my due considerations to the various contentions raised by the learned counsel for the parties and I find that it is an admitted case that the decree dated 3.5.1983 was passed on the basis of settlement between the parties. 6. At the outset I may notice that the provisions of Civil Procedure Code were amended by Act 104 of 1976 with effect from 1. 2.1977 and Rule 3A was added to Order 23 Civil Procedure Code. 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. 7. 2.1977 and Rule 3A was added to Order 23 Civil Procedure Code. 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. 7. 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. 8. At this stage, I would like to refer to law contained in Ram Kishan and others v. Sardari Devi and others, 2002(4) RCR(Civil) 837 : 2003(1) Civil Court Cases 11. In the aforesaid judgment, it was noticed by this e court that the suit challenging a compromise decree on the ground that it was obtained by misrepresentative and fraud was maintainable. However, the said judgment has no where 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 Kishan cases (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 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 are void or available under the Indian Contract Act, 1972, but the agreements or compromises 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. 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." 9. In view of the foresaid law and in view of the specific language of Rule 3A of Order 23, it is apparent that the application filed by the present petitioners before the lower court was maintainable and the petitioners were not required to file a separate suit as observed above by the lower court. In view of the aforesaid discussion, three petitions being Civil Revision Nos. 2385, 2388 and 2387 of 2007 filed by the petitioners succeed and are allowed. Impugned order dated 23.1.2007 passed by the trial court is set aside. However, the trial court is directed to proceed with the matter In accordance with law. Parties are directed to appear before the trial court on 17.12.2008.