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Madras High Court · body

2022 DIGILAW 2230 (MAD)

D. James Peter v. Nitin V. Patel

2022-07-20

G.CHANDRASEKHARAN

body2022
JUDGMENT : (Prayer: Review Application is filed under Order 47 Rule (1) of Code of Civil Procedure, to review the findings recorded in para 20 of the order, dated 02.11.2021 made in C.R.P.No.266 of 2021 by way of incorporation on 24.11.2021, pursuant to “for being mentioned” made by the revision petitioners in the above C.R.P.No.266 of 2021.) 1. This is a Review Petition to review the findings recorded in paragraph No.20 of the order, dated 02.11.2021 made in C.R.P.No.266 of 2021, by way of incorporation on 24.11.2021, pursuant to the listed matter, “for being mentioned” made by the review petitioners in the above C.R.P.No.266 of 2021 and pass further orders. 2. C.R.P.No.266 of 2021 was filed against the order passed in I.A.No.21 of 2018 in O.S.No.145 of 2017 on the file of the learned Subordinate Judge at Ponneri. I.A.No.21 of 2018 was filed for rejecting the plaint in O.S.No.145 of 2017. The respondents in the review petition are the petitioners in C.R.P.No.266 of 2021. 3. This Court, considering the records and rival submissions, dismissed the Civil Revision Petition on 02.11.2021 by confirming the order of dismissal passed in I.A.No.21 of 2018. Then the matter was listed under the caption “for being mentioned” on 24.11.2021. It was submitted by the learned counsel for the respondents/petitioners that the judgment and decree in O.S.No.49 of 2006 was recalled in I.A.No.301 of 2016 on the ground of fraud committed in getting the compromise in the suit. It was omitted to be mentioned in the order, therefore, learned counsel for the respondents/petitioners prayed to include a specific reference in the order that the judgment and decree in O.S.No.49 of 2006 was set aside on the ground of fraud and this aspect should also be decided by the trial Court. In response to his submission, learned counsel for the petitioner/respondent submitted that all these issues are open in the trial and it is not necessary to make a specific mention in the order. 4. This Court, on going through the order passed in C.R.P.No.266 of 2021, found that the learned counsel for the respondents/petitioners canvassed the point that I.A.No.301 of 2016 in O.S.No.49 of 2006 was filed under Order 43 Rule 1(A) r/w 151 C.P.C., to recall the compromise decree and judgment dated 17.06.2013, which according to the respondents was obtained by fraud. 4. This Court, on going through the order passed in C.R.P.No.266 of 2021, found that the learned counsel for the respondents/petitioners canvassed the point that I.A.No.301 of 2016 in O.S.No.49 of 2006 was filed under Order 43 Rule 1(A) r/w 151 C.P.C., to recall the compromise decree and judgment dated 17.06.2013, which according to the respondents was obtained by fraud. It was also recorded in paragraph No.17 of the order that the judgment in O.S.No.49 of 2006 had been recalled by the learned Subordinate Judge, Ponneri in the order passed in I.A.No.301 of 2016. Having satisfied that there is omission, this Court observed in paragraph 20 of the order that “it goes without saying that the judgment in O.S.No.49 of 2006 was primarily set aside on the ground of fraud played in arriving at a compromise in the main suit. Of course, it is an essential and important issue in the trial before the trial Court. Fraud vitiates the solemn proceedings; such plea can be set up even in collateral proceedings''. Now this review petition is filed to review this part of the order in paragraph 20. 5. Learned counsel for the review petitioner/respondent submitted that the petitioner along with others filed C.R.P.No.2928 of 2018 against the order passed in I.A.No.301 of 2016 in O.S.No.49 of 2006. The Civil Revision Petition was allowed on 05.03.2019. The respondents/petitioners filed Review Application No.101 of 2019 in C.R.P.No.2928 of 2018 and that review application was dismissed on 29.04.2019. The respondents also filed a clarification petition in C.M.P.No.15634 of 2019 in C.R.P.No.2928 of 2018 to clarify the order dated 05.03.2019 passed in C.R.P.No.2928 of 2018 and that petition was also dismissed on 26.07.2019. Against the dismissal order, the respondents/petitioners filed S.L.P (Civil) Diary No.7461 of 2021 before the Honourable Supreme Court and that petition was also dismissed on 02.07.2021. The position after the dismissal of the Special Leave Petition is that the compromise decree passed in O.S.No.49 of 2006 is upheld. When that be the position, the submission made on 24.11.2021 by the learned counsel for the respondents/petitioners that the judgment and decree in O.S.No.49 of 2006 was recalled in I.A.No.301 of 2016 on the ground of fraud and that fact has to be incorporated in the order is against the previous orders of this Court and Supreme Court. Therefore the findings recorded in paragraph No.20 of the order have to be reviewed. 6. Therefore the findings recorded in paragraph No.20 of the order have to be reviewed. 6. In reply, learned counsel for the respondents/petitioners submitted that in the grounds raised in C.R.P.No.2928 of 2018, the petitioners/respondents stated that “the petition to recall the alleged compromise decree and judgment, dated 17.06.2013 is not maintainable in view of the fact that the suit in O.S.No.46 of 2006 was only dismissed as not pressed recording the memo of compromise filed by the parties. As there was no compromise decree in the eye of law, it was sought to be recalled”. 7. Learned counsel for the respondents/petitioners further submitted that when the petitioner/respondent disputed the very compromise decree, the Civil Revision Petition filed in C.R.P.No.2928 of 2018 questioning the compromise decree is not maintainable. He further submitted that the order of the Supreme Court in S.L.P (Civil) Diary No.7461 of 2021 reads that “we find no reason to interfere with the impugned judgment and order in view of the reasons contained in the order dated 17.06.2013 passed by the learned Subordinate Judge, Ponneri in O.S.No.49 of 2016”. Learned Subordinate Judge, Ponneri passed the order that “memo of compromise filed. Recorded. Both petitioners present. In view of the compromise memo suit is dismissed as not pressed without costs in terms of compromise memo”. He further submitted that when the compromise was obtained by playing fraud, respondents/petitioners are entitled to challenge the judgment and decree passed in O.S.No.49 of 2016 dated 17.06.2013 alleging that it was obtained by fraud. 8. Considered the rival submissions and perused the records. 9. Admittedly O.S.No.49 of 2006 was dismissed as not pressed on the basis of the compromise memo filed and in terms of the compromise memo. The respondents/petitioners filed I.A.No.301 of 2016 in O.S.No.49 of 2006 under Order 43 Rule 1(A) r/w 151 C.P.C to recall the compromise decree and Judgment dated 17.06.2013, passed in the main suit on account of fraud played upon by the respondents therein and thereby reopening the suit and for costs. After contest, this petition was allowed and the compromise decree and judgment dated 17.06.2013 was recalled and the proceedings in O.S.No.49 of 2006 was ordered to be reopened. Challenging the order, the petitioner and others filed C.R.P.No.2928 of 2018. After contest, this petition was allowed and the compromise decree and judgment dated 17.06.2013 was recalled and the proceedings in O.S.No.49 of 2006 was ordered to be reopened. Challenging the order, the petitioner and others filed C.R.P.No.2928 of 2018. This Court passed the following order on 05.03.2019:- “Though extensive arguments have been made by either parties with reference to the issue involved in this Civil Revision Petition, it is conceded by either parties that pursuant to the compromise decree passed on 17.06.2013, both the parties have dealt with the properties and have therefore given effect to the compromise decree. Having done so, it is not now right on the part of the respondents to contend that the compromise decree has been fraudulently obtained. 2. Therefore, the Civil Revision Petition is allowed on the ground that since the compromise decree has been given effect to, nothing survives for consideration. No cost. Consequently, connected Civil Miscellaneous Petition is closed.” 10. Against the order passed in C.R.P.No.2928 of 2019, the respondents/petitioners filed Review Application No.101 of 2019 and that petition was dismissed on 29.04.2019 on the ground that the respondents/petitioners have not made out any case to review the order passed in C.R.P.No.2928 of 2018 on 05.03.2019. Again a clarification petition in C.M.P.No.15634 of 2019 was filed by the respondents/petitioners in C.R.P.No.2928 of 2018. This Court passed the following order in C.M.P.No.15634 of 2019, dated 26.07.2019 and dismissed the petition:- “In the above matter as narrated in the original order in the Civil Revision Petition, extensive arguments were made by both sides and ultimately, both the parties had settled the matter as per the terms of compromise. Taking into consideration the submissions made across the bar to be a reflection of the true facts, this Court had ultimately allowed the Civil Revision Petition since by the order impugned in I.A.No.301 of 2016 in O.S.No.49 of 2006, the learned Judge had set aside the compromise and directed the suit O.S.No.49 of 2006 to be re-opened. 2. An application is made to clarify the said order by making an observation that the order in the Civil Revision Petition will have no bearing in the suit. 2. An application is made to clarify the said order by making an observation that the order in the Civil Revision Petition will have no bearing in the suit. By the order of this Court dated 05.03.2019 in C.R.P(NPD)No.2928 of 2018, the compromise decree has been given effect too by setting aside the order in I.A.No.301 of 2016 in O.S.No.49 of 2006 on the file of the learned Subordinate Judge, Ponneri. Therefore, on and from 05.03.2019, there was no suit pending on the file of the learned Subordinate Judge at Ponneri. 3. Considering the fact that the order dated 05.03.2019 clearly states that the Civil Revision Petition is allowed on the ground that compromise decree has been given effect to, there is no necessity for clarifications. This Civil Miscellaneous Petition is dismissed.” 11. The order passed in C.R.P.No.2928 of 2018 on 05.03.2019 allowing the Civil Revision Petition made a specific reference that compromise decree had been given effect to and therefore nothing survives for consideration and that was reiterated in C.M.P.No.15634 of 2019. It is further observed that the order in I.A.No.301 of 2016 in O.S.No.49 of 2006 was set aside and as on 05.03.2019, there was no suit pending on the file of the learned Subordinate Judge at Ponneri in O.S.No.49 of 2006. As stated already, the respondents/petitioners filed S.L.P (Civil) Diary No.7461 of 2021 against the final Judgment and order dated 05.03.2019 in C.R.P.No.2928 of 2018 in R.A.No.101 of 2019 in C.M.P.No.15634 of 2019 passed by the High Court of Judicature of Madras. 12. The Honourable Supreme Court in S.L.P (Civil) Diary No.7461 of 2021 passed the following order:- “Delay condoned. We find no reason to interfere with the impugned judgment and order in view of the reasons contained in the order dated 17.06.2013 passed by the Subordinate Judge, Ponnari, in O.S.No.49 of 2006. The Special Leave Petitions stand dismissed. Pending application(s), if any, shall stand disposed of.” The Honourable Supreme Court found that there was no reason to interfere with the impugned judgment and order passed in C.R.P.No.2928 of 2018 in R.A.No.101 of 2019 in C.M.P.No.15634 of 2019 in view of the reason contained in order dated 17.06.2013 passed by the learned Subordinate Judge, Ponneri in O.S.No.49 of 2006. 13. 13. As already stated, the learned Subordinate Judge, Ponneri dismissed the suit as not pressed without costs in view of the compromise memo filed and in terms of the compromise memo. The High Court in C.R.P.No.2928 of 2018 set aside the order passed in I.A.No.301 of 2016 in O.S.No.49 of 2006 and ultimately that was confirmed by the Honourable Supreme Court. There is no suit in O.S.No.49 of 2006 pending from 05.03.2019 on the file of the learned Subordinate Judge, Ponneri. When that be the case, the submission of the learned counsel for the respondents/petitioners that the Judgment in O.S.No.49 of 2006 was obtained by fraud and that was recalled as per the order passed in I.A.No.301 of 2016 is against the orders of this Court in C.R.P.No.2928 of 2018. However, it is not known, at this distant point of time, whether the proceedings in C.R.P.No.2928 of 2018 and Review Application No.101 of 2019 in C.R.P.No.2928 of 2018, clarification petition in C.M.P.No.15634 of 2019 in C.R.P.No.2928 of 2018 and S.L.P (Civil) Diary No.7461 of 2021, were brought to the notice of this Court or it escaped the attention of this Court. 14. Whatever be the case, when there is no suit pending in O.S.No.49 of 2006 on the file of the learned Subordinate Judge, Ponneri after 05.03.2019 as per the order in C.R.P.No.2928 of 2018, it is not necessary to consider and record a finding in O.S.No.145 of 2017 with regard to the suit in O.S.No.49 of 2006 and the alleged fraud committed in getting the suit dismissed on the basis of the compromise memo. Therefore, this Court directs that paragraph Nos.18 to 21 of the order in C.R.P.No.266 of 2021 are ordered to be deleted. 15. Registry is directed to delete paragraph Nos.18 to 21 of the order in C.R.P.No.266 of 2021 and issue fresh order copy to the parties. 16. In the result, this Review Application is allowed. No costs.