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2017 DIGILAW 388 (ORI)

Niranjan Swain v. Ratani Behera

2017-04-10

D.DASH

body2017
ORDER 10.04.2017 This application under Article 227 of the Constitution has been filed seeking quashment of an order dated 28.11.2013 passed by the learned Civil Judge (Senior Division), Angul in C.S. No. 96 of 2006 filed by the opposite party no. 1 as the plaintiff. The opposite party no. 1 as the plaintiff has filed the above noted suit to set aside the compromise decree passed on 10.005.1998 in T.S. No. 252 of 1998 in the Lok Adalat. Said suit was for declaration of right, title, interest, recovery of possession, permanent injunction and other consequential reliefs. It is alleged that in the said suit the compromise decree so passed has been obtained by misrepresentation and fraud being practiced in the manner so as to wholly deprive the plaintiff of this suit of her legal entitlement who was defendant no. 4 therein. The petitioners as the contesting defendants no. 1 to 4 questioned at first the maintainability of the suit on the ground that the same is barred by the provision under Order 23, Rule 3(A) of the Code of Civil Procedure. So the trial Court by order dated 31.10.2013 decided to take up the question of maintainability of the suit as the preliminary issue. 2. Upon hearing, the learned trial Court has answered the said preliminary issue in favour of the plaintiff holding the suit to be maintainable for being decided on merit by answering the issues relating to misrepresentation and fraud if so have been resorted to in getting the said suit decreed in terms of compromise in the Lok Adalat. 3. Heard learned counsel for the petitioners and the opposite parties. I have carefully gone through the impugned order. 4. The plaintiff in the plaint while asserting that the compromise decree passed in the Lok Adalat has been obtained by misrepresentation and fraud, has further pleaded the manner in which the fraud has been practiced in the matter of disposal of said suit in finally getting the same decreed in terms of compromise in the Lok Adalat. More importantly, as also being the legal requirement, it has been assertively averred that the plaintiff had never given her LTI in the compromise petition and thus she had no knowledge at all about the same. More importantly, as also being the legal requirement, it has been assertively averred that the plaintiff had never given her LTI in the compromise petition and thus she had no knowledge at all about the same. About the time of deriving said knowledge, it is stated that it came to her notice when she appeared in the Land Acquisition Camp on receiving the notice sent in the name of her late husband. It is next stated that in that forum where the matter of determination and distribution of compensation for acquisition of land came up, the plaintiff then came to know about the claim of the defendants as regards the right, title and interest over the property in question on the basis of that very compromise decree. That being so, she obtained the certified copies of the order sheets, plaint, compromise petition and the decree and from all those she learnt on verification as to how fraud has been practiced by suppressing truth creating cock and bull stories etc. it has been specifically asserted that the plaintiff has never given her thumb impression on that compromise petition and the thumb impression on the compromise petition is not her thumb impression. Besides that, the allegations stand that signatures and thumb impressions of some other parties have also been so manipulated. These averments particularly denial of the plaintiff to have put her thumb impression is at the risk of inviting prosecution. Furthermore, other serious illegality and material irregularity both in fact and law touching the root have been stated. The learned trial Court as it appears has also taken note of all those in finally saying those to be tending to touch the root and thus standing for decision on merit. 5. The trial Court having taken all those averments into consideration has held the suit to be maintainable, taking a view that in such state of affair as is found on the face of the averments and upon perusal of the documents, a party ought not to be left remediless without adjudication of the disputed facts. The bar contained under Order 23, Rule 3(A) of the Code has thus been held to be of no application in so far as this case is concerned. So it has been held that the suit is not liable to be dismissed at that stage. The bar contained under Order 23, Rule 3(A) of the Code has thus been held to be of no application in so far as this case is concerned. So it has been held that the suit is not liable to be dismissed at that stage. The trial Curt has thus decided to take up the suit for decision on merit upon adjudication of the contentious issues and answering those after examination of rival case and evidence as would be placed before it. 6. On the face of the specific allegations leveled in impeaching the compromise decree so passed in the earlier suit in the Lok Adalat as also the detail narrations with regard to the manner in which the fraud has been practiced and misrepresentation made, this Court fines that the trial Court in answering the preliminary issue in favour of the plaintiff upon vivid discussion of rival case and available materials holding the suit to be maintainable has not fallen in any such error of law so as to say that the same has led to miscarriage of justice. When by legislations responding to the present days call and through all other modes at the expense of public time, money and energy, such disposal of litigations in Lok Adalats are being encouraged and in fact as the statistics show that it has gained great momentum in achieving success, the need that any such action/act as alleged in the instant case tending to pose hurdles on the path of success of the said institution be sternly dealt with very much stands. In that even, and the bar contained under Order 23, Rule 3(A) or under Section 21(2) of Legal Services Act do not stand on the way of adjudication of the elements of fraud and misrepresentation as alleged in specific terms. But here again caution remains that in such matter mere asking would not suffice and there has to be prima facie satisfaction that a case on that score surfaces on that issue for adjudication upon examination of facts and circumstances of the case and other materials placed on record. This exercise appears to have been done by the trial Court by making a detail discussion. In view of all the aforesaid, in my considered opinion, the order impugned is not found to be having any such flaw inviting interference in exercise of power under Article 227 of the Constitution. This exercise appears to have been done by the trial Court by making a detail discussion. In view of all the aforesaid, in my considered opinion, the order impugned is not found to be having any such flaw inviting interference in exercise of power under Article 227 of the Constitution. 7. In the wake of aforesaid, the writ application stands dismissed. It is however made that none of the above expressions shall be taken to have been so made on the rival claim and to have any such impact in the adjudication of the suit on its own merit. Viewing the age of the suit, the trial Court is hereby directed to proceed with the trial of the suit with expediency for its early disposal in accordance with law preferably within a period of six months w.e.f. 01.0.2017 on which day the parties are directed to appear before the trial Court to receive further instruction. No order as to cost. Application dismissed.