D.R. Backwire And Cable (P) Ltd. ... vs Shri B.B. Murgai And Anr.
2005 Latest Caselaw 1229 Del

JUDGMENT

Swatanter Kumar, J.

1. The plaintiffs have approached this court with a prayer that a decree be passed in favor of the plaintiffs and against the defendants declaring the compromise dated 4.2.2003 between the parties and the consequential decrees passed in OS No. 277/02 and OS No. 276/02 being illegal, contrary to law, against public policy and having been brought by fraud and, therefore, not binding upon the plaintiffs. The plaintiffs also pray that the execution filed by the decree holders being execution No. 56/03 be also dismissed and they further pray for passing of a decree that plaintiffs are still tenants at a monthly rent of Rs. 5,500/- and they are entitled to adjustment of the amounts which have been spent by them on repairs of the demised premises.

2. The necessary facts are that plaintiff No. 1 is a private limited company and plaintiff No. 2 is its Managing Director. They are tenants in property No. 36, Gagan Vihar, Delhi which they had taken on rent from the defendants who are co-owners of the property by means of a lease deed executed in the year 1990 and renewed in the years 1993, 1996 and lastly in 1998. According to the plaintiffs, they were regularly paying the rent, however, the defendants did not issue rent receipts for the same. It is also the case of the plaintiffs that defendants did not fulfilll their legal and moral obligations of maintenance, repairing and white-washing of the premises in question. The plaintiffs filed a suit for specific performance and other reliefs claiming extension of the lease deed which was registered as suit No. 277/02. The defendants, as a counter-blast thereto, filed a suit for possession of the disputed property being suit No. 276/02.

3. It is conceded that parties and their counsel had met and there were certain negotiations between the parties and they entered into a settlement in terms of which both the suits were disposed of. Keeping a trust on their counsel, the plaintiffs had signed the compromise dated 4.2.2003. But surprisingly the compromise filed before the court contained several other terms in addition to the terms stated in paragraph five of the plaint. As such, the said compromise was a result of a fraud played with the plaintiffs and also upon the court. The deed of compromise is annexed to the present plaint as annexure 'C'. Thus, it is the case of the plaintiffs that the said compromise is illegal ab-initio and not binding upon the plaintiffs and consequential decrees passed upon the compromise are liable to the set aside and the execution filed for enforcing the said rights is also liable to be dismissed.

4. The plaintiff was out of station in the month of April, 2005. When he came back he was informed by his neighbours that bailiff from the court had come to deliver the possession of the suit property to the defendants in the present suit. An appeal was also filed against the warrant for possession and the appellate court had stayed the execution subject to the plaintiffs' depositing a sum of Rs. 1,66,500/-. The compromise is, thus, questioned by the plaintiffs by filing the present suit.

5. It has to be noticed at the very outset that the plaintiff is not disputing signing of the compromise which is annexed to the present plaint as annexure 'C'. The compromise is signed by the parties as well as their counsel. Each page of the compromise application (under Order 23 Rule 3 read with section 151 of the CPC) filed before the trial court is signed by the parties. Further, it is also admitted that there was compromise between the parties and negotiations were held. The basic challenge is that certain terms have been incorporated which were not agreed upon between the parties and as such, a fraud has been played upon the plaintiffs because of which the compromise dated 4th February, 2003, consequential compromise decrees which have not even been filed on record, are liable to be set aside and not binding upon the plaintiffs while the execution is also not maintainable.

6. It is not necessary for me to examine the merit or otherwise all these contentions raised before this court as the present suit is patently barred under Order 23 Rule 3(a) of the CPC. These provisions are clear and unambiguous. This being a bar to the very institution of the suit, the plaintiffs are required to clear the said impediment at the very threshold of the proceedings. Such provisions are not only to be strictly construed but should also be strictly applied. Under Rule 3(a), no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The emphasis of the case of the plaintiffs is that the compromise is a result of a fraud and for that reason the compromise dated 4.2.2003 is void, illegal, unenforceable and not binding upon the plaintiffs. The expression 'not lawful' has to be given a wider meaning and it would take within its ambit not only a compromise which is void in terms of the provisions of the Contract Act but also even otherwise such as want of authority to make the compromise. The pleaded case of the plaintiffs being that of a fraud would inevitably result in dismissal of the present suit under the provisions of Order 7 Rule 11 of the CPC as the suit appears for the statement in the plaint to be barred by law.

7. In the case of Banwari Lal v. Smt. Chando Devi the Supreme Court clearly stated that where the court had recorded alleged compromise or agreement in a casual manner and which was result of a fraud, the court which recorded the compromise was the competent court to examine whether such a contract is void or voidable and what shall be its consequences. These matters including the allegation of fraud have to be examined by that court. Still in the case of Anant Mahadeo Godbole v. Achut Ganesh Godbole and others , the court stated that 'However, the words 'not lawful' occurring in this rule have a wider content than similar words in the explanation to the proviso to Rule 3 as it bars a suit to set aside a compromise decree on the ground that the compromise on which the decree is based was not lawful not only on the grounds contained in the Contract Act but also otherwise such as want of authority to make the compromise.

8. However, the learned counsel for the plaintiffs referred to the judgment of Supreme Court in the case of Smt. Kaushalya Devi and others v. K.L. Bansal to contend that the court had no jurisdiction to pass a decree for possession and the compromise decree passed is not executable. The reliance placed by the counsel is completely mis-placed. In that case the Supreme Court held that the decree which was passed under the provisions of Section 13 of the Delhi and Ajmer Rent Control Act on a compromise without court's recording any satisfaction for existence of the ground for eviction, was held to be a nullity and, therefore, not executable. That certainly is not the case here. The plaintiffs have also not placed any such ground in the plaint. Furthermore, the suits were compromised between the parties by a consent decree for civil suits one for specific performance and the other for possession filed under the provisions of the CPC. Thus, the judgment relied upon by the plaintiffs has no application to the facts of the present case.

9. For the above recorded reasons, I have no hesitation in rejecting the plaint of the plaintiffs at the very threshold and consequently dismissing this suit, however, with liberty to the plaintiffs to take recourse to such other appropriate legal remedy which is available to them in view of the provisions of Order 23 of the CPC.

10. The suit and IA No. 6577/2005 are finally disposed of while leaving the plaintiffs to bear their own costs.