Shri. Ajitpalsingh S/O. ... vs Sanjay S/O. Shamrao Deulkar
2017 Latest Caselaw 3725 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

             CIVIL REVISION APPLICATION (CRA) NO.1 OF 2016


Ajitpalsingh s/o Nirmalsingh Khalsa 
Aged about 34 years, Occ. Business, 
R/o "Deepvila" 161, Sai Nagar, 
Tah. Amravati, Dist. Amravati.                              ... Applicant. 

-vs-

1.  Sanjay s/o Shamrao Deulkar
     Aged about 47 years, Occ. Nil. 
     R/o Saboo Nagar, Akali Road, 
     Tah. Amravati, Dist. Amravati. 

2.  Haji Harun Abdul Shakur,
     Aged about 55 years, Occ. Business, 
     R/o Navi Wasti, Badnera, 
     Tah and Dist. Amravati.                                ... Respondents.  


Shri P. J. Mehta, Advocate for applicant. 
Shri M. V. Mohokar, Advocate for respondent No.1. 
Shri A. J. Gilda, Advocate for respondent No.2. 


                CORAM  :  DR (SMT) SHALINI PHANSALKAR-JOSHI, J. 

DATE : JUNE 29, 2017

Oral Judgment :

This revision raises some interesting questions of law relating to

applicability of principles of res judicata, provisions of Section 47 CPC and

Section 21 of the Legal Services Authority Act, 1987.

Revision is directed against the order dated 21/11/2015 passed

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by the Jt. Civil Judge (SD) Amravati in Spl. C.S.No.337/2010 thereby

rejecting the contention raised by the petitioner that the suit was not

maintenable as it was barred by res-judicata and various other provisions of

law.

2. Facts, necessary for deciding this revision, can be stated as follows :

Respondent No.1 herein, has agreed to sell the area admeasuring

2149 sq. ft. with the construction thereon, to the petitioner by executing

agreement for sale dated 16/11/2004 for valuable consideration of

Rs.10,00,000/-. On the date of agreement itself, petitioner has paid

Rs.5,00,000/- to respondents as earnest money. The sale deed was to be

executed on or before 16/10/2005. The said agreement was confirmed by

executing a supplementary agreement between the parties, at the time of

which additional amount of Rs.1,00,000/- was paid to the respondent on

16/11/2004. Another supplementary agreement dated 15/03/2005 also

came to executed between the parties under which the petitioner herein paid

the balance consideration also. However, the respondent failed to execute

the sale deed as per the agreement. Hence the petitioner was constrained to

file Spl. C.S. No.206 of 2005 for specific performance of the contract against

the respondent.

3. When respondent received the summons of the said suit, he appeared

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in the Court and engaged his counsel. At that time respondent and his

counsel proposed the petitioner to amicably settle the dispute. Accordingly

joint pursis came to be filed by both the parties before the Court and matter

was put up before the Lok Adalat on 16/10/2005.

Accordingly on 16/10/2005 both the parties appeared before Lok

Adalat and the matter was settled and compromised between them on the

terms and conditions that the respondent shall pay Rs.6,50,000/- to the

petitioner vide two cheques of Rs.3,25,000/- each drawn on HDFC Bank

Ltd., Amravati. It was further agreed that if the said cheques are

dishonoured and the amount of Rs.6,50,000/- was not paid by respondent to

the petitioner on or before 26/03/2006, then petitioner shall be entitled to

get the sale deed executed through the Court. He was also held entitled to

get possession of the suit property from the Court.

4. According to the petitioner, dispute between the parties thus came to

be settled finally before the Lok Adalat. Accordingly, the joint compromise

pursis, bearing signatures of both the parties and their respective counsels

came to be filed before the Lok Adalat. After ascertaining the terms of

settlement of the joint pursis to its satisfaction, the Lok Adalat passed the

compromise decree on 16/10/2005.

5. The petitioner thereafter presented both the cheques for encashment,

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however they were dishonoured. Respondent also failed to pay amount of

Rs.6,50,000/- on or before 26/03/2006. Hence petitioner filed Special

Darkhast No.31/2006 for execution of sale deed of the suit property and for

possession thereof. When respondent received notice of execution

proceedings, he appeared before the Executing Court and filed various

applications, contending that, at the time of compromise before Lok Adalat,

his mental condition was not proper. His counsel was also not present before

the Lok Adalat. Moreover he had no knowledge of English and therefore he

was not aware about the contents of compromise pursis and hence decree

passed on the basis of compromise pursis is not binding on him and it should

be accordingly declared null and void.

6. The executing Court considered his application and after hearing

learned counsels for the parties thereon, was pleased to reject the same,

vide its order dated 22/11/2007, not accepting the contention raised by

respondent No.1 that his mental condition was not proper at the time of

compromise. The executing Court also considered the provisions of Section

21 of the Legal Services Authorities Act 1987 and held that the award passed

by the Lok Adalat is final and arrived at with the consent of both the parties

to the dispute hence it cannot be challenged in appeal or otherwise. The

Executing court also took into consideration the provision of Section 96(3) of

CPC which states that no appeal shall lie from a decree passed by the Court

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with the consent of the parties. On the basis of this finding, the Executing

Court held the petitioner entitled for execution of the sale deed and

accordingly passed the order directing respondent to execute the sale deed

of the property in favour of the petitioner. As respondent did not execute the

sale deed, it came to be executed in favour of the petitioner on 24/12/2007

thorugh officer of the Court. The petitioner was also put in possession of the

suit property through Court on 14/07/2008.

7. Against this order, passed by the Executing Court, the respondent filed

W.P. No.387/2008, before this Court. However it came to be dismissed as

withdrawn on 11/02/2008, with liberty to take appropriate steps in

accordance with law.

8. On the basis of the same, the respondent filed the present suit before

the trial Court for cancellation of the sale deed of the suit property, which

was executed on 24/12/2007 and for possession of the property with

movables therein. The said suit was also filed two years after withdrawal of

the writ petition from the High Court. The petitioner therefore filed an

application under Order VII Rule 11(d) CPC thereby bringing to the notice of

the trial Court that the suit is barred by law, in view of various provisions of

law, like Section 11 and Section 47 CPC and Section 21 of Legal Services

Authority Act, 1987. Reliance was also placed on the earlier order passed in

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Spl. Darkhast No.31/06, rejecting all the contentions raised by the

respondent, and which were repeated in the suit. It was submitted that

respondent has directly challenged the sale deed without challenging the

compromise decree though he has earlier disputed the same. It was further

submitted that as the sale deed was executed in his favour, by the learned

trial Court, in pursuance of the compromise decree, in view of Section 21 of

Legal Services Authorities Act, 1987, the suit is not maintainable. It was

also submitted that the suit was barred by res judicata in view of Explanation

VIII to Section 11 CPC, as all the contentions raised in the plaint were raised

by respondent in Spl. Darkhast No.31/2006. They were dealt with by the

executing Court and rejected on merits. The said order was also not

challenged. Further it was also submitted that as the compromise decree

was passed on 16/10/2005 and the present suit was filed on 04/12/2010, it

was beyond the period of limitation of three years and hence, on this count

also, it was barred by law.

9. The petitioner thereafter filed another application, for challenging

maintainability of the suit itself and for framing preliminary issues on all

these legal points.

10. On this application, after considering rival pleadings of both the parties,

learned trial Court framed as many as seven preliminary issues for its

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consideration and on answering all of them in negative, held that suit was

not barred by any law and directed the suit to proceed further.

11. This order of the trial Court is the subject matter of this revision, as its

legality and validity is challenged by learned counsel for the petitioner by

submitting that the trial Court has not properly appreciated the legal position

and wrongly held that the opportunity of adducing evidence needs to be

given to respondent/plaintiff to show that he was pressurised or compelled

to compromise the matter before the Lok Adalat.

12. Per contra, learned counsel for the respnodent has supported the

impugned order of the trial Court by submitting that if the compromise

decree was not legal and valid, then respondent is entitled to challenge the

same. Merely because it was presented before the Lok Adalat and award

was passed on that basis, he can not be precluded from instituting the suit to

challenge the same. It was submitted that there is no question of principle of

res judicata being applied to the facts of the present case.

13. In view of these facts on record and in the light of rival submissions

advanced by learned counsels for both the parties, the first and foremost

question for consideration in this revision is whether the suit filed by the

respondent can be considered to be barred by law in view of the provisions of

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Sections 21 and 22 of Legal Services Act, 1987?

14. In this case, it is an admitted fact that after the suit for specific

performance was filed by the petitioner, respondent has appeared in the said

suit and as the matter was likely to be compromised between the parties as

per submissions made before the concerned Court, it was kept before the Lok

Adalat on 16.10.2005. In the Lok Adalat, matter was settled amicably and a

compromise pursis was filed. On the basis of this compromise pursis which

was presented before Lok-Adalat, following order is passed by Lok-Adalat on

16/10/2005.

"Plaintiff and deft. No.1 are present, before Lok Adalat. Counsel for

plaintiff is present. Counsel for deft. No.1 has signed tis pursis, however he

is absent. Contents of prusis are read over and explained to parties by

members of the panel. They admitted it and admitted their signatures also.

Seen and filed".

15. On the basis of this compromise pursis, decree came to be passed. Now

the question for consideration is whether the compromise decree which is

passed on the basis of compromise arrived at before Lok Adalat, can be

challenged, either by way of appeal or by way of separate suit or by way of

any other proceeding? In this respect, provisions of Section 21 of Legal

Services Authority Act, 1987, are relevant. This section deals with 'Award of

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Lok Adalat' and reads as follows :

21. Award of Lok Adalat

(1) Every award of the Lok Adalat shall be deemed to be a decree of a civil

court or order of any other court or tribunal and where a compromise or

settlement has been arrived at, by a Lok Adalat in a suit or proceeding

transferred to it under sub-section (1) of section 20, the court-fee paid in

such suit or proceeding shall be refunded in the manner provided under the

Court fees Act, 1870 (7 of 1870).

(2) Evey award made by a Lok Adalat shall be final and binding on all the

parties to the dispute, and no appeal shall lie to any court against the award.

16. Clause (2) of Section 21 is relevant for consideration because according

to this provision, every award made by Lok Adalat shall be final and binding

on the parties to the dispute and no appeal shall lie in any Court against such

award. Therefore the Section itself provides that there can be no appeal

against the award passed by the Lok Adalat. So what could be the remedy to

the aggrieved party is laid down by the Apex Court in its decision in case of

State of Punjab and anr. vs. Jalour Singh and ors. (2008) 2 SCC 660. In

paragraph 12 of it is judgment, the Apex Court was pleased to hold as

follows :

"12. It is true that where an award is made by the Lok Adalat in terms

of a settlement arrived at between the parties (which is duly signed by

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parties and annexed to the award of the Lok Adalat), it becomes final and

binding on the parties to the settlement and becomes executable as if it is

decree of a civil court, and no appeal lies against it to any court. If any party

wants to challenge such an award based on settlement, it can be done only

by filing a petition under Article 226 and/or Article 227 of the Constitution,

that too on very limited grounds".

17. Thus the remedy to the aggrieved party is very much provided against

the award passed by the Lok Adalat, in terms of settlement arrived at

between the parties. However, the said remedy is only by way of filing a

writ petition under Article 226 or Article 227 of the Constitution, that too on

very limited grounds. Hence if at all the respondent was aggrieved of the

award passed by the Lok Adalat, the proper remedy of quashing it was

available to him either by filing writ petition under Article 226 and/or 227 of

the Constitution. He has no right to file appeal as the award passed by the

Lok Adalat is final and binding.

18. As regards submission of learned counsel for respondent that even in

respect of the order passed in Lok Adalat, the applicant can approach the

Court for seeking the relief against the said order and for which reliance is

placed on the judgment of Apex Court in case of Dr Ashish Ranjan vs. Dr

Anupama Tandon and Anr. 2010(12) Scale 577 is misplaced. It has to be

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stated that facts of this authority are totally different. In that case, there was

violation of the consent order passed by Lok Adalat in respect of custody of

child. It was noticed by the honourable Supreme Court in paragraph 22 that

from passing of said order, the circumstances have substantially changed,

due to non-compliance of the terms of compromise order. Hence, it was held

that applicant was fully justified seeking review/modification of the order.

19. In the instant case, the facts are totally different. It is not at all the case

of Respondent that there is any substantial change in the circumstances

subsequent to the order of compromise decree. Therefore this authority

cannot be made applicable to the facts of the present case.

20. Even the provisions of Section 96(3) of CPC bars such appeal against

the consent decree. Section 96(2) deals with the appeal from original decree

and sub-section (3) of the said Section lays down that no appeal shall lie

from a decree passed by the Court with the consent of the parties. Therefore

this sub-section again bars the remedy of appeal to the respondent.

21. However, question for consideration is whether a separate suit can be

tenable to challenge the decree passed with consent of the parties?

For deciding this question, the contentions raised by the respondent in

the suit need to be taken into consideration. According to respondent, at the

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time of compromise, his mental condition was not good and his Advocate

was not present in Lok-Adalat. Moreover he was not knowing the English

language and therefore he was not aware of the contents of the compromise

pursis. However, these contentions cannot be accepted on the face of it also

as the endorsement on compromise pursis show that the contents thereof

were read over and both the parties admitted those contents and also their

signatures thereon. The endorsement on the compromise pursis also show

that it was signed by Respondent's counsel. Therefore these very contentions

which were raised by the respondent before the Executing Court also that as

his counsel was not present and he had no knowledge of English and

therefore the compromise decree needs to be set aside, were rejected by the

Executing Court, being baseless and without any substance. The Executing

Court had also dealt with his contention that his mental condition was not

proper. In paragraph 6 of its order, the Executing Court found that the

documents produced by the respondent to prove that his mental condition

was not good are of the year 2000-01, 2003-04 whereas the matter was

compromised between the parties before Lok-Adalat held on 16/10/2005. It

was further held that respondent has not produced any documents of the

year 2005 to show that his mental condition was not good at the relevant

time. Hence the Executing Court held that it cannot be accepted that mental

condition of the respondent was not good at the time of compromise.

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22. Thus, the Executing Court has dealt with all contentions which were

raised by the respondent for setting aside the compromise decree passed by

Lok Adalat. Though that order was challenged by Respondent by filing

W.P.No. 387/2008, he has withdrawn that writ petition. Hence, that order

has become final. Hence even assuming, for the sake of argument that

separate suit can be tenable and it should be filed before the same Court for

challenging the compromise decree, that separate suit needs to be held as

barred by the principles of res judicata, considering that in the execution

proceedings, all these contentions were raised and dealt with by the

Executing Court and admittedly this finding of the Executing Court has

become final, as Writ Petition No. 387/2008 filed against it, being disposed

of as withdrawn.

23. The principles of res judicata are well settled to the extent that even if

a certain plea is raised and decided in execution proceedings and if the order

thereon has attained finality, then the same plea cannot be allowed to be

agitated again, by filing a separate suit. Here in the case therefore the bar of

res judicata is definitely attracted so far as the present suit filed by the

respondent is concerned, as it is filed on the same averments and contentions

which were earlier rejected by the executing Court. It is pertinent to note

that no new grounds are averred by the respondent in this suit to challenge

the compromise decree and as all these contentions raised in the present suit

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are already decided and has attained finality, the present suit is required to

be held as barred by law of res judicata.

In this respect learned counsel for petitioner has also rightly relied

upon the provisions of Order 23, Rule 3-A of the Civil Procedure Code, which

specifically bar a suit to set aside the decree passed on the basis of

compromise arrived at between the parties on the ground that the

compromise on which the decree is based was not lawful. The only ground

on which this bar will not come in the way of the plaintiff is when there are

allegations of fraud or collusion. Herein the case no such allegations of fraud

or collusion are made again either the defendant or even again any other

statutory authority.

24. Moreover if at all any such compromise decree is to be set aside on

the ground it is obtained fraudulently and hence not lawful, then as held by

the Apex Court in the case of Banwari Lal vs. Chando Devi and another

(1993) 1 SCC 581, such compromise decree needs to be challenged before

the same Court under the provisions of Order 23, Rule 3 of the Civil

Procedure Code; the same cannot be done by filing a separate suit. Hence on

this ground also the suit of the present nature for challenging a compromise

decree being barred, cannot be maintainable, as held by the Apex Court in

the case of R. Rajanna vs. S.R. Venkataswamy and others (2014) 15 SCC

471 also. Therefore, on this ground also the suit filed by the respondent

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before the Trial Court was apparently barred by law.

25. The bar of limitation also becomes applicable in the instant case as by

the present suit, the respondent/plaintiff is seeking the relief or cancellation

of the sale-deed dated 24.12.2007 executed by the Court in favour of the

petitioner. He has thus challenged the compromise decree on the basis of

which the sale-deed was executed through Court. He is also seeking delivery

of vacant possession of the suit house with movables taken therefrom.

However, again this relief was also granted to the petitioner on the basis of

the compromise decree and hence, indirectly again the respondent is

challenging the compromise decree itself. The said compromise decree was

passed on 16.10.2005, whereas the suit is filed seeking the consequential

relief for cancellation of sale-deed and possession of the property in the year

2010. Hence, apparently in view of the provisions of Article 59 of the

Limitation Act, which requires the suit to be filed within three years from the

accrual of the cause of action, the suit is required to be held as barred by

limitation.

26. There is one more aspect, which also needs to be considered and it

pertains to Section 47 of the Civil Procedure Code. As per this section all the

questions arising between the parties to the suit in which the decree was

passed, or their representatives and relating to the execution, discharge or

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satisfaction of the decree shall be determined by the Court executing the

decree and not by a separate suit. In the instant case, respondent is

challenging the execution of the sale-deed and delivery of possession of the

suit property, which was given to the petitioner in the execution proceeding

of the compromise decree. Therefore, if at all he has any grievance about the

same, the proper remedy for him was to challenge the same before the

executing court itself under Section 47 of the Civil Procedure Code. As a

matter of fact, he has tried to challenge the same in executing court, but has

not become successful, and therefore, on this count also, suit cannot be

tenable.

27. Thus inference is inevitable that the present suit filed by the respondent

is not only barred by the provisions of res judicata, Section 47 of CPC, Order

XXIII, Rule 3A, Section 21 of Legal Services Act, but also under the Limitation

Act. The trial Court has not considered these legal provisions. The impugned

order passed by the trial Court, therefore, needs to be set aside.

28. As a result, revision is allowed. The impugned order passed by the

Court is set aside. In consequence, the plaint is rejected as it is barred by

law.

JUDGE

Asmita