Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 45 (JK)

Rehti v. Abdul Gani

2012-02-13

MOHAMMAD YAQOOB MIR

body2012
1. Trial court (Munsiff, Pulwama) in terms of order impugned dated 29.12.2008 has dismissed the application filed under Section 151 CPC Aggrieved thereof revisional jurisdiction of this Court has been invoked. 2. Facts and circumstances which have given rise to the impugned order are precisely required to be noticed as same shall be advantageous for proper appreciation of the controversy: (I) Suit titled Abdul Gani v. Ali Lone (file No. 146), on the basis of compromise deed, has been Decided on 05.05.1992 by the trial court. Ali Lone (defendant therein) was issueless whereas Abdul Gani (plaintiff therein) is his sister's son. In terms of the compromise defendant Ali Lone is shown to have gifted away the suit land in favour of the plaintiff Abdul Gani. (II) Ali Lone filed a suit titled Ali Lone v. Abdul Gani Lone for cancellation of the consent decree wherein it is projected that he is in possession of the suit land covered by khewat Nos.124 and 126 along with one storeyed tin roofed residential house and one granary (kothar). Abdul Gani has obtained a decree on the basis of a compromise which is based on fraud because he was interested in executing a will deed in favour of Abdul Gani, on whose behest he was taken to an Advocate and was asked to sign the will deed but the paper on which his sign was taken was blank, he was under the impression that will deed will be prepared. He in fact wanted Abdul Gani to be the owner of the suit land after his life time but he has been cheated as his signature has been misused. It is also projected that Ali Lone had agreed for execution of a will deed so as to retain the power of revoking the same during his life time on need basis. (III) In opposition Abdul Gani filed the written statement wherein he contended that the suit is barred by Order 23 Rule 3-A CPC and has also claimed to be in possession of the suit property. (IV) Finally on the basis of respective pleadings, trial court has framed the following issues: 1) Whether the plaintiff is the khewatdar at Ratnipora and is in possession of the land falling under khewat No.124 & 126 as a khewatdar ?(OPP) 2) Whether decree impugned passed by Id. (IV) Finally on the basis of respective pleadings, trial court has framed the following issues: 1) Whether the plaintiff is the khewatdar at Ratnipora and is in possession of the land falling under khewat No.124 & 126 as a khewatdar ?(OPP) 2) Whether decree impugned passed by Id. Munsiff Pulwama on 5.5.1992 on the basis of compromise deed is ineffective on the rights of the plaintiff and is liable to be cancelled for being based on fraud?(OPP) 3) Whether the suit aforesaid is barred by order 23 R 3-A CPC?(OPD) 4) Whether the suit is not maintainable in the present form for want of relief for possession?(OPD) 5) Whether the suit is time barred?(OPD) 6) Whether the suit of the plaintiff is hit by law of estoppel?(OPP) 7) Relief ?(OP Parties) (V) Issue No.3 was treated as a preliminary issue and was fixed for consideration but in the meantime, on 19.3.1998, Ali Lone filed an application praying therein that the suit may be treated as an application under Section 151 CPC. Objections were filed on 10.5.2000. In view of this position, at the instance of counsel for the parties, hearing on the preliminary issue No. 3 was deferred and the parties were permitted to led evidence, as such, both the parties led evidence. (VI) On conclusion of the evidence, counsel for the parties were heard and issue-wise findings have been recorded. Issue No. 1. Whether the plaintiff is the khewatdar at Ratnipora and is in possession of the land falling under khewat No. 124 & 126 as a khewatdar?(OPP) It is recorded that the defendant Abdul Gani has been paying the usufruct of the suit land to the plaintiff Ali Lone which means that the defendant was in possession of 18 kanals of land and rest of the land under khewat No. 124 and 126 situated at Ratnipora is in possession of plaintiff Ali Lone, so the issue was partly decided in favour of the plaintiff and partly in favour of the defendant. Issue No.2. Whether decree impugned passed by Id. Munsiff Pulwama on 5.5.1992 on the basis of compromise deed is ineffective on the rights of the plaintiff and is liable to be cancelled for being based on fraud?(OPP) While dealing with this issue, it is recorded that the witness Mr. Issue No.2. Whether decree impugned passed by Id. Munsiff Pulwama on 5.5.1992 on the basis of compromise deed is ineffective on the rights of the plaintiff and is liable to be cancelled for being based on fraud?(OPP) While dealing with this issue, it is recorded that the witness Mr. J. D. Asgar Advocate has deposed that the plaintiff had approached him at his house for execution of a document which could not be quashed in future. It is the said witness who has deposed that he wrote a suit and the compromise deed and filed the same in the Court but in the Court defendant (plaintiff herein) did not appear and the compromise deed was signed by one advocate on behalf of Ali Lone and it has been concluded that the plaintiff has succeeded in establishing that the defendant played fraud and the said position has remained uncontroverted. Issue has been decided in favour of plaintiff Ali Lone. Issue No.3. Whether the suit aforesaid is barred by order 23 R. 3-A CPC?(OPD) While dealing with this issue, trial court, while relying on the judgment reported in AIR 1993 SC 1139 , has recorded that the present suit of the plaintiff (Ali Lone) is treated as application under Section 151 CPC, accordingly issue has been decided in favour of plaintiff Ali Lone. Issue No.4. Whether the suit is not maintainable in the present form for want of relief for possession? (OPD) No evidence has been led, therefore, decided in favour of the plaintiff. Issue No.5. Whether the suit is time barred?(OPD) Issue No.6. Whether the suit of the plaintiff is hit by law of estoppel?(OPP) In respect of both these issues it is recorded that no evidence has been led by the defendant, therefore, decided in favour of the plaintiff. Issue No.7. Relief. It has been concluded that the plaintiff Ali Lone is entitled to the relief of cancellation of decree dated 05.05.1992 passed by Munsiff, Pulwama in case titled Abdul Gani v. Ali Lone as the compromise was proved by the plaintiff as being based on fraud whereas defendant has succeeded in proving that the decreed land is in his possession at present, as such, relief for permanent injunction is not permissible. (VII) Aggrieved by the said judgment and decree appeal has been preferred but in the meantime Ali Lone has died, therefore, in appeal his widow Mst. (VII) Aggrieved by the said judgment and decree appeal has been preferred but in the meantime Ali Lone has died, therefore, in appeal his widow Mst. Rehti has been arrayed as party/respondent. (VIII) Learned District Judge while deciding the said appeal has dealt with the findings recorded vis-a-vis issue No.3 and 4 and on the result of such determination has recorded that there is no necessity to go into the correctness of the findings recorded on other issues. Learned Appellate Court has relied on the judgment rendered by the Hon'ble Apex Court in the case titled Banwari Lal v. Smt. Chando Devi ( AIR 1993 SC 1139 ), wherein it has been held that "a party challenging a compromise can file a petition under proviso to R. 3 of O. 23, or an appeal under S. 96(1) of the Code, in which he can now question the validity of the compromise in view of R.I A of O.43 of the Code". Finally has concluded that the trial court has converted the suit into an application under Section 151 CPC but has not given an opportunity of being heard to the defendant. On such basis has recorded that the finding recorded vis-a-vis issue No.3 is illegal, erroneous, therefore, set aside. (IX) While dealing with the finding on issue No.4, the Appellate Court has recorded that the issue No.4 being purely a legal issue could be Decided on the basis of law. Since the trial court has found the plain tiff out of possession so has declined to pass consequential relief of permanent injunction but has passed the decree of declaration simplicitor which is a nullity in terms of Section 42 of the Specific Relief Act. A decree of declaration simplicitor cannot be executed at all because the decree of declaration is passed when a shadow is cast upon the title of a person vis-a-vis some property or some right. Unless there is a consequential relief claimed, a decree of declaration becomes a paper decree, thus has been declared as nullity in law. (X) While recording aforesaid findings vis-a-vis issue No.3 and 4, the learned Appellate Court has recorded that the correctness of the findings vis-a-vis other issues are not required to be looked into. Unless there is a consequential relief claimed, a decree of declaration becomes a paper decree, thus has been declared as nullity in law. (X) While recording aforesaid findings vis-a-vis issue No.3 and 4, the learned Appellate Court has recorded that the correctness of the findings vis-a-vis other issues are not required to be looked into. Then has remanded the case back to the trial court with the direction to decide the application under Section 151 CPC after hearing the parties which application appears to have been filed during the trial. 3. Though judgment of the Appellate Court dated 26.02.2008 is not under challenge but a strange situation arise there from because in terms of modified findings vis-a-vis issue No.3 and 4, nothing would survive for further consideration before the trial court. What could be the purpose of remanding the case so as to decide the application under Section 151 of CPC afresh is totally astonishing. This position will be dealt with later on. 4. In view of the direction for hearing the application under Section 151 of the Code of Civil Procedure afresh, as is the mandate of the judgment dated 26.02.2008 passed by the Appellate Court, learned trial court while noticing that he has to decide as to whether suit could be treated as an application under Section 151 of CPC, while referring to the position of Order 23 Rule 3-A of CPC, appear to have concluded that there is a specific bar for challenging the consent decree, therefore, there is no scope for invoking powers under Section 151 of the Code. While quoting para 20 of the judgment rendered in the case Bahori v. Vidya Ram ( AIR 1978 All. 299 ), has concluded that the exercise of power under Section 151 CPC is expressly prohibited and it is only when there is no such prohibition, the Court can consider whether power should be exercised under Section 151 CPC or not. 5. Aggrieved by the said order, instant revision petition has been filed by Mst. Rehti-widow of Ali Lone. 6. The star question for consideration at the first instance is as to what is the remedy available for challenging the decree which has been passed on the basis of a compromise. 5. Aggrieved by the said order, instant revision petition has been filed by Mst. Rehti-widow of Ali Lone. 6. The star question for consideration at the first instance is as to what is the remedy available for challenging the decree which has been passed on the basis of a compromise. Order 23 Rule 3A CPC in specific terms provides that no suit shall lie to set aside a decree on the ground that the compromise, on which the decree is passed, was not lawful. 7. In the case in hand it has been specifically pleaded that Ali Lone, who was defendant in the original suit, never gifted away his property, instead his signature was taken on a blank paper by an Advocate at his residence under the impression that a will deed will be executed but instead a compromise deed has been prepared and presented in the court where, on behalf of AH Lone, an Advocate has appeared. On the said basis it has been pleaded that the decree is based oil a fraudulent compromise. On such ground consent decree is open to be challenged by having recourse to proviso to Order 23 Rule 3A or an appeal under Section 96(1) read with Rule 1A of Order 43 of the Code of Civil Procedure. 8. Similar position fell for the consideration of Hon'ble Apex Court in the case Banwari Lal v. Smt Chando Devi ( AIR 1993 SC 1139 ), wherein it had been pleaded that the order recording compromise be recalled on the ground that the counsel was in collusion with the defendant who had played fraud on him by filing a fabricated petition of compromise although no compromise had been effected between him and the defendant. In the said reported judgment scope of bar as operates under Order 23 Rule 3, scope of proviso to Rule 3 of Order 23 and scope of Rule 1A of Order 43 of the Code has been considered. 9. In the reported case the trial court had recalled the order passed in the suit on the basis of compromise. Same was set aside by the High Court but restored by the Hon'ble Apex Court. 9. In the reported case the trial court had recalled the order passed in the suit on the basis of compromise. Same was set aside by the High Court but restored by the Hon'ble Apex Court. The Hon'ble Apex Court in para 13 of the judgment, while referring to the proviso along with explanation to Rule 3 of Order 23, has held as unden- "........In view of the proviso read with explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even R.1(m) of O.43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to R.3 of O.23, or an appeal under S.96(1) of the Code, in which he can now question the validity of the compromise in view of R.I A of O.43 of the Code." 10. Hon'ble Apex Court in para 14 of the judgment has also noticed the position as was prevalent prior to introduction of the proviso along with explanation to Rule 3 of Order 23. It shall be quite relevant to quote following portion from para 14 of the said judgment: "The application for exercise of power under proviso to R.3 of O.23 can be labelled under S. 151 of the Code but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to R.3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under S. 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Smt. Tara Bai. v. V. S. Krishnaswamy Rao, AIR 1985 Kar 270 ; S. G. Thimmappa v. T. Anantha, AIR 1986 Kar 1 , Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, AIR 1958 Pat 618 ; Mangal Mahton v. Behari Mahton, AIR 1964 Pat 483 and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw, AIR 1982 Cal 12 , where it has been held that the application under S. 151 of the Code is maintainable..." 11. Chaudhary v. Debendra Pd. Singh, AIR 1958 Pat 618 ; Mangal Mahton v. Behari Mahton, AIR 1964 Pat 483 and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw, AIR 1982 Cal 12 , where it has been held that the application under S. 151 of the Code is maintainable..." 11. Finally in the said para it has been concluded as under: ".......If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to R.3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27-2-1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of R.3, there was no option left except to recall that order." 12. Applying the law as has been laid down in the reported judgment, the application of the petitioner could not be termed to be misconceived. The bar to suit as envisaged by Order 23 Rule 3-A does not prohibit the remedy of challenging the position of the decree being based on fraud, as permissible under explanation to proviso to Rule 3 or even under Section 151CPC. The trial court has not appreciated the position of law correctly. The Appellate Court too has fallen in error while recording findings on issue No.3 and issue No.4 but since that judgment has not been challenged and on over all analysis trial court judgment had been set aside and case remanded to the trial court so as to decide the application. 13. Learned counsel appearing for the respondent challenged the maintainability of the instant petition. While projecting the same, contends that in view of the amendment to Section 115 CPC revision petition cannot lay against an order which, if would have been in favour of the revisionist, would not terminate the suit proceedings. 14. Now the question is as to whether by holding the application under Section 151 as maintainable by treating the suit as an application under Section 151 CPC, the suit proceedings would terminate or not. Answer is very simple. 14. Now the question is as to whether by holding the application under Section 151 as maintainable by treating the suit as an application under Section 151 CPC, the suit proceedings would terminate or not. Answer is very simple. Evidence has been led on all issues, though framed in the suit but are directly the issues to be considered for allowing or disallowing the application. So in case trial court would have held the application to be maintainable, the necessary corollary of the same would have been adjudication of the entire dispute because evidence was led by both the parties relatable to the question of fraud. So while recording finding about the maintainability, the main controversy was also to be decided at the same time, so the suit proceedings would terminate. Therefore, bar in the said background for maintaining the revision petition will not operate. It is in view of this position in the beginning of the judgment position of the framing of issues, recording of evidence and the findings recorded thereon stand noticed. 15. The order impugned if allowed to remain will result in causing miscarriage of justice, as such, is set aside. The trial court is directed now to decide the application on merits on the basis of the evidence as has already been led in the suit. 16. Learned counsel for the parties shall appear before the trial court on 20-02-2012. 17. Copy of this order along with trial court record be sent to the trial court well before the date fixed.