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2012 DIGILAW 90 (PNJ)

Surjit Kaur v. Bhupinder Singh Waraich

2012-01-17

L.N.MITTAL

body2012
JUDGMENT Mr. L. N. Mittal, J.: (Oral)- Defendants no.1, 2 and 4 have filed the instant revision petition under Article 227 of the Constitution of India assailing order dated 05.01.2012 (Annexure P-9) passed by learned Additional Civil Judge (Senior Division), Jalandhar, thereby dismissing petitioners’ application (Annexure P-8) under Order 23 Rule 3-A read with Section 151 of the Code of Civil Procedure (in short – CPC) for setting aside compromise dated 23.08.2001 (Annexure P-4) and consequent compromise decree dated 27.08.2001. Ancillary relief was also sought. 2. Respondent no.1 – plaintiff filed suit against petitioners and Jasbeer Kaur alias Rajwinder Kaur – respondent no.2 herein for specific performance of the agreement to sell. In the said suit, parties effected compromise (Annexure P-4) dated 23.08.2001. Pursuant to compromise, the suit was decreed vide judgment and decree dated 27.08.2001 in terms of compromise. 3. Petitioners herein filed Civil Suit to challenge the aforesaid compromise decree. However, since separate suit was not maintainable in view of Order 23 Rule 3-A CPC, the petitioners withdrew the suit with liberty to file application to challenge the compromise judgment and decree and accordingly, the petitioners moved application (Annexure P-8) for setting aside the compromise judgment and decree dated 27.08.2001 along with compromise dated 23.08.2001 (Annexure P-4). The main thrust of the petitioners in the application was that the compromise was result of fraud, misrepresentation, coercion and undue influence. Allegations mainly were against Mr. Ashok Kumar Sabharwal, Advocate. 4. The application was resisted by respondent no.1-plaintiff denying the averments of the petitioners. Various other pleas were also raised. 5. Learned trial court, vide detailed impugned order dated 05.01.2012 (Annexure P-9), dismissed the petitioners’ application. Feeling aggrieved, petitioners have filed the instant revision petition. 6. I have heard learned counsel for the petitioners and perused the case file. 7. Going into the background of the petitioners’ version, counsel for the petitioners contended that respondent no.2 herein (defendant no.3 in the suit) is widow of Lakhwant Singh, who was son of Surjit Kaur – petitioner no.1 and brother of Baljit Kaur and Lakhwinder Kaur – petitioners no.2 and 3 respectively. Regarding murder of Lakhwant Singh, his widow – defendant no.3 lodged FIR No.39 dated 12.03.1999, wherein petitioner no.1 Surjit Kaur, along with her son Baljit Singh, was facing trial. Regarding murder of Lakhwant Singh, his widow – defendant no.3 lodged FIR No.39 dated 12.03.1999, wherein petitioner no.1 Surjit Kaur, along with her son Baljit Singh, was facing trial. According to the counsel for the petitioners, compromise Annexure P-4 was effected in the suit with assurance that defendant no.3 shall resile in the aforesaid criminal case pending against petitioner no.1 and her son. Accordingly, defendant no.3 vide statement dated 29.08.2001 (Annexure P- 5), made in the said murder case as witness, turned hostile. Consequently, petitioner no.1 and her son were acquitted vide judgment dated 29.08.2001 (Annexure P-6). It was thus pointed out that immediately after the compromise and consequent compromise decree in question, defendant no.3 turned hostile in the criminal case and petitioner no.1 and her son were acquitted and thus, the impugned compromise was result of fraud and misrepresentation. 8. I have carefully considered the aforesaid contentions, but find myself unable to accept the same. 9. The aforesaid facts do not point out to any fraud, misrepresentation, coercion or undue influence because the petitioners voluntarily entered into compromise (Annexure P-4) and suffered the consequent decree dated 27.08.2001 and also got the benefit of the compromise by securing acquittal of petitioner no.1 and her son. However, immediately after acquittal, the petitioners turned dishonest and filed suit to challenge the compromise decree and then filed application (Annexure P-8) for the same purpose. 10. In addition to the aforesaid, it has to be noticed that even before compromise (Annexure P-4) was effected on 23.08.2001, petitioner no.1 had lodged FIR No.155 dated 07.06.2000 against Mr. Ashok Kumar Sabharwal, Advocate and others. They faced trial in that case and ultimately, vide judgment and order dated 02.02.2009, Ashok Kumar Sabharwal was convicted under Sections 216 and 420 of the Indian Penal Code (in short – IPC) and Section 8 of the Prevention of Corruption Act, while his co-accused Sushma Bawa was convicted under Section 216 IPC and their other co-accused were acquitted. Petitioners were thus having grievance against Mr. Ashok Kumar Sabharwal, Advocate at least since 07.06.2000, when they lodged FIR against him. Consequently, the question of petitioners being coerced or influenced by Mr. Ashok Kumar Sabharwal, Advocate or being defrauded or misrepresented by him on 23.08.2001, while entering into compromise (Annexure P-4), more than 14 months after lodging of the aforesaid FIR by petitioner no.1 against Mr. Sabharwal, could not arise. Consequently, the question of petitioners being coerced or influenced by Mr. Ashok Kumar Sabharwal, Advocate or being defrauded or misrepresented by him on 23.08.2001, while entering into compromise (Annexure P-4), more than 14 months after lodging of the aforesaid FIR by petitioner no.1 against Mr. Sabharwal, could not arise. The entire stress of petitioners against Mr. Sabharwal regarding his role in the alleged compromise is completely misplaced and unsustainable. 11. Petitioners also alleged that in the suit, they were being represented by Mr. D. N. Bahri, Advocate, but on the basis of record of the suit, trial court has found that petitioners were not being represented in the suit by Mr. Bahri, but were being represented by one Mr. Dalbir Singh, Advocate, in whose favour there was Vakalatnama, whereas there was no Vakalatnama in favour of Mr. D. N. Bahri, Advocate. 12. The trial court has recorded very detailed order analysing the material on record in great depth and detailed reasons have been assigned for dismissing the petitioners’ application. Even as per own showing of the petitioners, they themselves turned dishonest while they are levelling allegations against others. The boot is on the other leg. The petitioners have taken benefit of the impugned compromise, as per their own version and now, they want to wriggle out of it. This is not permissible. 13. Even if acquittal of petitioner no.1 and her son in the criminal case, pursuant to compromise, is ignored, the compromise was voluntary and there was no fraud, misrepresentation, coercion or undue influence. 14. For the reasons aforesaid, I find no merit in the instant second appeal. Impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is accordingly dismissed in limine. --------------