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2015 DIGILAW 194 (ORI)

Barendra Biswal v. Rama Roy alias Das

2015-03-25

S.PANDA

body2015
ORDER : This writ petition has been filed by the petitioner challenging the judgment dated 28-12-2010 passed by the learned Civil Judge (Senior Division). Balasaore in C.M.A. No. 209 of 2008-I arising out of C. S. No. 238 of 2004-I rejecting an application filed under Order 23, Rule 3-A of C.P.C. to set aside the consent judgment and decree dated 11-5-2004 respectively passed in the suit. 2. The brief facts of the case are that opposite party No. 1 as plaintiff filed C. S. No. 238 of 2004-I before the learned Civil Judge (Senior Division), Balasore for declaration of right, title, interest and to declare that Registered Sale Deed No. 8926 dated 29-12-2003 is illegl and inoperative. In the plaint it was pleaded that though the petitioner-defendant promised to pay the consideration amount of Rs. 7,23,215/- to the plaintiff immediately after 15 days of the registration of Sale Deed, he avoided to pay the same. The possession of the suit land has not been delivered and the original sale deed was to be handed over to the defendant after full payment of the total consideration amount. 3. Though the suit was posted for office note on 1-5-2004, the same was put up in advance on 16-4-2004 on which date the suit was admitted and notice was issued to the defendant fixing the date of appearance on 1-7-2004. However, on 11-5-2004 the matter was put up on the basis of advance petition. An Advocate purportedly appeared on behalf of the petitioner and compromise was recorded by the Court below on the basis of a compromise petition filed by both the parties. A decree to that effect was also passed on 16-5-2004. 4. On verification of record, the petitioner found that the said compromise decree had been obtained by misutilising the paper entrusted by him to opposite party No. 2 who is a close neighbour of the petitioner. The petitioner was serving at Saudi Arabia in the year 2003 and he came to his native place in October, 2003. Opposite party No. 2 gave a proposal to the petitioner to purchase a land situated adjacent to the Bank Petrol Pump at Station Square, Balasore for a consideration of Rs. 7,23,215/-. The petitioner accepted the said proposal and also obtained certified copy of the R.O.R., Non-encumbrance Certificate for 13 years and confirmed that it was not transferred earlier. Opposite party No. 2 gave a proposal to the petitioner to purchase a land situated adjacent to the Bank Petrol Pump at Station Square, Balasore for a consideration of Rs. 7,23,215/-. The petitioner accepted the said proposal and also obtained certified copy of the R.O.R., Non-encumbrance Certificate for 13 years and confirmed that it was not transferred earlier. He purchased the non-judicial stamp paper FRANK for an amount of Rs. 72,330/- in the name of opposite party No. 1. A sale deed was drafted and submitted before the District Sub-Registrar, Balasore on 29-12-2003. The petitioner also paid the registration fee of Rs. 14,525/-. Prior to the execution of the sale deed, a Savings Bank Account was opened in the Indian Overseas Bank, Somnathpur Branch in the name of opposite party No. 1. The petitioner deposited Rs. 5,00,000/- on 26-12-2003 and paid the rest consideration amount of Rs. 2,23,215/- to opposite party No. 1 at the time of execution of the sale deed, i.e., on 29-12-2003. Possession was delivered to the petitioner. The petitioner also obtained the original sale deed from the Sub-Registrar Office, Balasore on 12-1-2004. 5. While matter stood thus, opposite party No. 2 proposed the petitioner to hand over all the documents including the original sale deed dated 29-12-2003 along with the written and unwritten signed papers to him so that he will take steps to mutate the land in the name of the petitioner. The petitioner had no occasion to disagree to the said proposl and he handed over all the documents, sale deed, written and unwritten papers along with Vakalatnama to opposite party No. 2 in presence of opposite party No. 1 keeping xerox copies of the same with him. He paid Rs. 25,000/- towards the expenses of mutation case. Thereafter, the petitioner left Balasore in the 1st week of April, 2004. 6. The petitioner came to Balasore and was shocked to notice that the sale deed dated 29-12-2003 in respect of the suit land had already been cancelled by virtue of a decree passed by the learned Civil Judge, (Senior Division), Balasore in C. S. No. 238 of 2004 on the basis of compromise arrived at between the parties out of the Court. After enquiring about the said fact, the petitioner found that the compromise decree was obtained by misutilising the papers entrusted by him to opposite party No. 2. After enquiring about the said fact, the petitioner found that the compromise decree was obtained by misutilising the papers entrusted by him to opposite party No. 2. Therefore, the petitioner moved this Court in F.A.O. No. 86 of 2005 against opposite party Nos. 1 and 2 challenging the collusive judgment and decree dated 11-5-2004 and 15-5-2004 respectively. This Court granted interim order of injunction and directed opposite party Nos. 1 and 2 not to change the nature and character of the suit land. The FAO was disposed of with a liberty to the petitioner that in case he files a proper application under Section 151, CPC before the trial Court, the same shall be disposed of as early as possible, preferably within a period of six months from the date of filing of such application to recall the compromise decree and the name of opposite party No. 2 was deleted from the F.A.O. as he was not a party to the suit and liberty was also given to the petitioner that if so advised, he may implead opposite party No. 2 as a party before the trial Court. 7. Accordingly, the petitioner filed C.M.A. No. 209 of 2008 before the trial Court along with an application to implead opposite party No. 2 as a party to the proceeding. However, the said application was rejected by the Court below by order dated 19-7-2008 against which the petitioner filed W. P. (C) No. 10862 of 2008 before this Court , which was allowed by judgment dated 22-10-2008. 8. The petitioner filed an application before the Court below under Order 23, Rule 3-A of C.P.C. to set aside the consent judgment and decree dated 11-5-2004 and 15-5-2004 respectively passed in the suit, which was registered as C.M.A. No. 209 of 2008-I. In the said application it was stated that the decree was obtained fraudulently and the compromise effected was totally unlawful. The petitioner had paid the consideration amount in full to opposite party No. 1 prior to execution of the sale deed through cheque and opposite party No. 1 withdrew some amount from the Bank. The petitioner had paid the consideration amount in full to opposite party No. 1 prior to execution of the sale deed through cheque and opposite party No. 1 withdrew some amount from the Bank. Therefore the petitioner became the absolute owner in possession of the suit land after taking delivery of possession on 29-12-2003 and the title never passed to opposite party No. 1 by virtue of any such compromise and at the instance of opposite party No. 2 such fraud has been committed by opposite party No. 1. Opposite party No. 1 filed her show cause stating that the petitioner has signed the compromise being aware of the contents of the same and it was never effected behind his back. The petitioner was very well present in Court and no fraud was committed. The petitioner himself admitted to have not paid any such consideration and he appeared through his own advocate. Opposite party No. 2 also filed his objection to the said application stating that he is neither necessary party nor proper party. The petitioner without paying any consideration wanted to grab the property and opposite party No. 1 transferred a portion of the suit property to him to the knowledge of the petitioner. 9. The Court below after hearing the parties by the impugned judgment rejected the application with a finding that compromise decree drawn was partly lawful and it was unlawful so far as declaration of title of plaintiff is concerned. 10. Learned counsel appearing for the petitioner submitted that as per the terms and conditions of the compromise petition, the defendant had not only admitted the title of the plaintiff over the suit land but also admitted the plaint allegations about non payment of the consideration amount and has agreed for cancellation of the registered sale deed in question declaring the same as illegal and inoperative. The judgment and decree is an outcome of fraud committed not only on the party but also on Court. Hence the impugned judgment need be interfered with. In support of his contention he has relied on the decision in the case of Santosh v. Jagat Ram and another, reported in (2010) 109 CLT 543 (SC) : (AIR 2010 SC (Supp) 65) wherein the Apex Court held that the decree as a result of fraud is nothing but a nullity. 11. In support of his contention he has relied on the decision in the case of Santosh v. Jagat Ram and another, reported in (2010) 109 CLT 543 (SC) : (AIR 2010 SC (Supp) 65) wherein the Apex Court held that the decree as a result of fraud is nothing but a nullity. 11. Learned counsel appearing for opposite party No. 1 submitted that the compromise decree was prepared in the presence of the petitioner and the contents of the same were read over and explained to him by his advocate therefore the plea of fraud and illegality taken by the petitioner cannot be accepted. 12. Learned counsel appearing for opposite party No. 2 submitted that the petitioner without paying any consideration wanted to grab the property. He further submitted that opposite party No. 1 transferred a portion of the suit property to opposite party No. 2 to the knowledge of the petitioner. He also submitted that the compromise was lawful and no fraud was committed. 13. In view of the contentions raised by the learned counsel for the parties and after going through the materials available on record, it reveals that the application filed for compromise was not in accordance with the following statutory provisions. Rule 16 of General Rules and Circular Orders of the High Court of Judicature, Orissa (Civil) Volume-I stipulates that when a person presenting a pleading, affidavit, petition or application is not an Advocate, a Pleader or a Mukhtar, he shall if so required by the Court, be identified. In the case of an illiterate person his thumb impression shall be affixed in place of the signature required in this connection. Further Rule 485 stipulates that no Court shall accept admission of a compromise by a Pleader/Advocate or record a compromise filed by a Pleader or Advocate in a pending case, unless a special Vakalatnama is filed by such Pleader or Advocate for the said purpose. in the present case the so called compromise was entered into between the parties and the terms and conditions of the said compromise was explained to the parties. They having understood the same put their signature in the compromise petition without identification and affidavit. in the present case the so called compromise was entered into between the parties and the terms and conditions of the said compromise was explained to the parties. They having understood the same put their signature in the compromise petition without identification and affidavit. 13.1 Order 6, Rule 15 (1) of C.P.C. stipulates that every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Sub-rule (4) was inserted to Order 6, Rule 15 of C.P.C. by Act No. 46 of 1999 w.e.f. 1-7-2002 which stipulates that the person verifying the pleading shall also furnish an affidavit in support of his pleadings. 14. However, the Court below accepting the compromise petition decreed the suit on the terms and conditions of the said compromise. Though the said application was defective due to non compliance of the aforesaid provision the said fact was not taken note of. On the above back-ground the Court below has not considered whether fraud has been practised or not taking into consideration the provisions as discussed. If further reveals from the L.C.R. that the order sheet in which the compromise was recorded is a plain paper one without, assigning any reason why printed form of order sheet was not appended thereto. The Court below while considering the application under Order 23, Rule 3-A of C.P.C. should have also taken note of all these facts. 15. Considering the above, this Court while setting aside the impugned judgment dated 28-12-2010 passed by the learned Civil Judge (Senior Division), Balasaore in C.M.A. No. 209 of 2008-I arising out of C. S. No. 238 of 2004-I, remits the matter back to the Court below for fresh disposal in accordance with law. The Writ Petition is accordingly disposed of. Order accordingly.