Smt. Rajwanti And Anr. vs Sh. Kishan Chand Shehrawat And ...
2009 Latest Caselaw 2160 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CS(OS) 904/2009

%                         Date of decision: 20th May, 2009


SMT. RAJWANTI AND ANR.                                ....... Plaintiffs
                        Through:   Mr.    Sudhir    Nandrajog,      Sr.
                                   Advocate with Mr. Manish Jain,
                                   Advocate for the plaintiffs of Kings
                                   & Alliance Advocates.

                               Versus

SH. KISHAN CHAND SHEHRAWAT
AND ORS.                                           ....... Defendants
                        Through: Ex-parte


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

Whether reporters of Local papers may be allowed to see the judgment? Yes

2. To be referred to the reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

RAJIV SAHAI ENDLAW, J (ORAL)

1. The suit has been filed for (i) declaration of the consent decree

and order dated 7th December, 2004 decreeing the suit in terms

thereof, of the court of the Additional District Judge, Delhi as null

and void, and for (ii) declaring the agreement to sell and other

agreements/rectifications/power of attorney, all with respect to the

property, subject matter of the consent decree and in pursuance

thereto, as null and void, and for (iii) possession of the property

subject matter of the compromise decree, and for (iv) permanent

injunction etc. against the defendants.

2. The suit came up first on 18th May, 2009 when doubt was

expressed by this Court as to the maintainability of the suit owing to

the provisions of Section 47, Order 23 Rule 3A of the CPC as well as

on the aspect of limitation. On the request of the senior counsel for

the plaintiff the matter was posted for today.

3. Order 23 Rule 3A of the CPC provides that no suit shall lie to

set aside a decree on the ground that the compromise on which the

decree is passed was not lawful.

4. The case of the plaintiffs shorn of details is that the plaintiff

No. 1 was allotted plot No.85, Block D, admeasuring 350 sq. meters

at Rangpuri by the DDA in lieu of her acquired lands; that the

plaintiff No. 1 and her daughter plaintiff No. 2 owned other lands

also which were subject matter of acquisition proceedings; that the

defendant No. 1 is the son of the brother of the husband of the

plaintiff No. 1; that the plaintiff No. 1 trusted the defendant No. 1

blindly; that the defendant No. 1 took the responsibility of pursuing

the land acquisition compensation case and allotment of alternate

plots to the plaintiff No. 1; that in the month of March, 2003 the

defendant No. 1 took the plaintiff No. 1 to the residence of his

daughter and son-in-law impleaded as defendants No. 2 & 3

respectively; that the defendant No. 3 is a judicial officer in Delhi; on

that date thumb impression of the plaintiff No. 1 was obtained on a

number of blank as well as written papers; that the plaintiff No. 2

was also brought along with her identity card and the both the

plaintiffs were thereafter taken to the Sub Registrar office at

Kapashera; that both the plaintiffs were made to put their thumb

impressions on certain papers at Kapashera and their photographs

were also taken; that the plaintiffs were misled by the defendants

No. 1 to 3 into believing that the whole exercise was being done for

receiving compensation claim for the acquired lands of the plaintiffs;

the defendants No. 1 to 3 also deposited Rs. 2 lacs in the account of

the plaintiff No. 1; that the plaintiff No. 1 subsequently learnt that

she had been duped by the defendants No. 1 to 3 by getting a GPA

and Will executed fraudulently in favour of the defendant No. 2 to

usurp the plot aforesaid allotted to the plaintiff No. 1 at Rangpuri;

when the plaintiff No. 1 confronted the defendant No. 1 he stated

that he had purchased the said plot of the plaintiff No. 1 for a

consideration of Rs. 20 lacs and out of which Rs. 2 lacs had been

deposited in the account of the plaintiff No. 1; that the plaintiffs took

immediate steps for revocation of the Will and the General Power of

Attorney and also served a notice of revocation dated 29th

September, 2004 and also made a complaint/representation dated

24th September, 2004 to the Lt. Governor of Delhi and Commissioner

of Police, Delhi; that the defendants No. 1 to 3 on coming to know of

revocation threatened the plaintiff No. 1 and in pursuance to the

said threats, on the blank papers got signed from the plaintiff No. 1

fabricated an agreement to sell dated 28th May, 2003 of the

aforesaid plot of land by the plaintiff No. 1 in favour of the defendant

No. 4 who is stated to be an accomplice of the defendants No. 1 to

3; that the said agreement to sell is also for a consideration of Rs. 20

lacs out of which Rs. 5 lacs were purported to be given in cash as

earnest money; that besides the said agreement, another agreement

to sell dated 31st March, 2003 in favour of the defendant No. 1 was

similarly fabricated; the defendant No. 5 is stated to be an attesting

witness to the forged documents and another accomplice of the

defendants No. 1 to 3; that the defendant No. 4 filed a false

complaint dated 2nd September, 2004 against the plaintiff No. 1; that

the plaintiff No. 1 and her relatives were also implicated in another

false case before the Court of Metropolitan Magistrate, New Delhi,

with the connivance of the defendant No. 3 being a judicial officer;

that the plaintiff No. 1 made a complaint dated 5th October, 2004 of

the aforesaid acts to the police authorities; yet another FIR was filed

against the plaintiff No. 1 by the defendant No. 1; that the plaintiffs

filed a Criminal Writ Petition No. 1302/2004 before this Court inter

alia for quashing all the FIRs against the plaintiff No. 1 and for

registering FIR against the defendants; that during the pendency of

the said writ petition the defendants No. 1 to 3 approached the

plaintiff No. 1 for settlement with the promise to withdraw all the

FIRs if the plaintiffs No. 1 & 2 give a statement in the Court with

regard to the plot at Rangpuri in favour of the defendants in a suit

filed by the defendants; that the plaintiffs under coercion signed

several papers as asked by the defendants and also went to Tis

Hazari Court and made statement to the satisfaction of the

defendants in the suit filed by the defendants qua the plaintiffs. It is

the case of the plaintiffs that on the statement being made by them

that suit was decreed pursuant to the alleged compromise recorded

in the suit. The plaintiffs however claim that they could not come to

know the Court in which their statements were recorded.

5. It is further the case of the plaintiffs that the defendant No. 1

forcibly handed over Rs. 30 lacs towards the aforesaid plot of land to

the plaintiff No. 1 and which the plaintiff No. 1 had no choice but to

retain under the threat and intimidation from the defendants. The

plaintiffs have further pleaded that the defendants No. 1 to 4 made a

statement before this Court in the writ petition aforesaid of the

matter having been settled and accordingly the said writ petition was

disposed of by order dated 2nd May, 2005 whereby both the FIRs

against the plaintiff No. 1 were also quashed.

6. The plaintiffs have further pleaded that thereafter in the month

of October, 2005 the defendants No. 1 to 3 again forcibly took the

plaintiff No. 1 to the office of the Sub-Registrar Kapashera and got

some papers signed and registered in respect of the aforesaid plot of

land.

7. Pursuant to the allotment of the plot aforesaid, the possession

of the plot is stated to have been delivered in October, 2005 and it is

pleaded that the same was illegally taken over by the defendants No.

1 to 3 on the pretext of the forged and fabricated documents and

consent decree aforesaid. The defendant No. 1 to 3 are also stated to

have commenced raising constructions thereon.

8. The relative of the plaintiffs who is also stated to have also

been named in the FIR at the instance of the defendants against the

plaintiff No. 1 and which relative is also stated to have remained in

judicial custody without any fault is stated to have filed a

complaint/representation before the Chief Justice of this Court

against the defendants No. 1 to 3 for their illegal actions.

9. The plaintiffs claim to have learnt that this Court took

cognizance of the aforesaid complaint and initiated an enquiry

against the defendant No. 3 being a judicial officer. The plaintiff No.

1 is stated to have been summoned to appear in the said enquiry.

10. The plaintiffs plead that knowledge of the aforesaid enquiry

against the defendant No. 3 by this Court gave hope to the plaintiffs

of getting justice and led the plaintiffs to institute the present suit.

The plaintiffs claim to have thereafter traced the records of the suit

wherein the consent of the plaintiff No. 1 was obtained by force,

fraud, coercion and undue influence and upon learning of the

particulars of the said suit instituted this suit. The plaintiffs also

claim to have learnt of a sale deed dated 20th October, 2005,

Rectification Deed and Special Power of Attorney got registered by

the defendants No. 1 to 3 forcibly from the plaintiff No. 1.

11. The certified copy of the plaint in the suit in which the consent

decree sought to be set aside was passed shows that the same was

by the defendant No. 1 herein against the plaintiffs No. 1 & 2 and

the defendant No. 4 herein and certain other persons who are not

parties to this suit. The claim of the defendant No. 1 herein as

plaintiff in that suit for declaration and permanent injunction was

that the plaintiff No. 1 herein had agreed to sell the alternate plot to

be then still allotted to her for a consideration of Rs. 10 lacs and had

executed an irrevocable General Power of Attorney and a Will with

respect thereto in favour of the defendant No. 2 herein. The plaintiff

No. 1 was also alleged to have executed an agreement to sell dated

31st March, 2003 in favour of the defendant No. 1 for Rs. 10 lacs and

out of which Rs. 2 lacs had been received by the plaintiff No. 1

herein with the balance Rs. 8 lacs being payable at the time of

delivery of possession; it was further a term of the said agreement

that upon failure of the plaintiff No. 1 herein to execute the transfer

document, the defendant No. 2 herein as the attorney of the plaintiff

No. 1 will be entitled to execute the sale deed in favour of the

defendant No. 1 and the balance sale consideration of Rs. 8 lcas will

be paid to the plaintiff No. 2 herein. It was further pleaded therein

that the plaintiff No. 1 herein became dishonest and started

demanding additional consideration of Rs. 10 lacs from the

defendant No. 1 herein; that ultimately the sale consideration was

agreed to be enhanced to Rs. 15 lacs and the defendant No. 1 herein

paid another sum of Rs. 3 lacs in cash to the plaintiff No. 1 and the

balance Rs. 10 lacs was adjusted by execution of a General Power of

Attorney by defendant No. 1 with respect to another plot (Parnala

Plot) in favour of the plaintiff No. 2 herein. It was further pleaded

that a fresh agreement to sell dated 22 nd July, 2003 was executed by

the plaintiff No. 1 in favour of the defendant No. 1 and the original

sale deed of Parnala plot was delivered by the defendant No. 1 to the

plaintiff No. 2. The defendant No. 1 pleaded to have, in pursuance to

the said agreement also executed and got registered a GPA,

agreement to sell and Will in favour of the plaintiff No. 2 with

respect to the Parnala plot of land in adjustment of the balance sale

consideration of Rs. 10 lacs.

12. A registered agreement to sell dated 25th August, 2004 also

executed by the defendant No. 2 as the attorney of the plaintiff No. 1

in favour of the defendant No. 1 with respect to the Rangpuri plot.

13. The defendant No. 1 in his suit aforesaid further pleaded that

the plaintiffs herein had however thereafter turned dishonest and

lodged complaints and got issued notices leading the defendant No.

1 to institute that suit for declaration that the agreement to sell

dated 31st March, 2003 and 22nd July, 2003 executed by the plaintiff

No. 1 in person and registered agreement to sell dated 25th August,

2004 executed by the defendant No. 2 herein as attorney of the

plaintiff No. 1 in favour of the defendant No. 1 with respect to

Rangpuri plot were legal, valid and for consideration and the

subsequent agreement dated 25th August, 2003 executed by the

plaintiff No. 1 herein in favour of the defendant No. 4 herein was null

and void and for permanent injunction restraining the plaintiffs from

entering into any agreement with respect to the aforesaid plot and

from transferring the possession thereof to any other person.

14. The application under Order 23 Rule 3 of the CPC filed by the

plaintiff and the defendants in that suit inter alia records:-

(i) That the plaintiff No. 1 admitted the claim of the

defendant No. 1 with respect to the plot aforesaid and

admitted execution of the agreements to sell and other

documents with respect thereto in favour of the defendants No.

1 to 2 herein.

(ii) The plaintiffs further admitted having received Rs. 5 lacs

by way of cheque and cash and the remaining consideration of

Rs. 10 lacs with respect to the Rangpuri plot by adjustment in

the price of Parnala plot transferred by the defendant No. 1 to

the plaintiffs.

(iii) The deed of revocation of the General Power of Attorney

and Will with respect to Rangpuri Plot in favour of the

defendant No. 2 was admitted to be bad and the said

documents were agreed to be irrevocable.

(iv) Plaintiff No. 1 admitted to execution and registration of a

fresh Will with respect to the Rangpuri plot in favour of the

defendant No. 2.

(v) The plaintiff No. 1 undertook to deliver vacant

possession of the Rangpuri plot as and when the possession

thereof was delivered by the DDA and also authorized

defendant No. 1 to approach the DDA directly for taking

possession of the said plot.

(vi) That the subsequent agreements admitted to have been

executed by the plaintiff No. 1 in favour of the other

defendants in the suit with respect to the said plot were set

aside.

(vii) The parties also agreed to withdrawal of the Criminal

Writ Petition and other appeals/complaints.

(viii) The plaintiffs herein undertook not to enter into any

agreement in future with respect to the aforesaid plot.

15. The court of the Additional District Judge where the suit

aforesaid was pending after recording the statement of the parties

allowed the compromise application and decreed the suit in terms

thereof.

16. I have also perused the documents with respect to the plot

executed subsequent to the aforesaid compromise and relief of

setting aside whereof is also claimed in this suit. They are in

pursuance to the compromise decree aforesaid and not in pursuance

to any independent right created thereunder even though reference

to the compromise decree is not made therein. Suffice it is to state

that the said documents have no independent legs and if the

compromise decree aforesaid is to be set aside, the said documents

would ipso facto stand annulled/cancelled.

17. The senior counsel for the plaintiff to meet the bar of Order 23

Rule 3A of the CPC referred to:-

(A) Dadu Dayal Mahasabha Vs. Sukhdev Arya (1990) 1 SCC

189. In this case the suit had been dismissed as withdrawn on the

application of the plaintiff. Subsequently an application was filed for

recalling of the said order. It was contended that the person who had

represented to be the secretary of the plaintiff/appellant in that case

and withdrawn the suit was in fact not the secretary and was thus

not competent to withdraw the suit. In that context, the Apex Court

drew a distinction between the fraud practised on a party and the

fraud practised on the court and in the facts of that case having

found a fraud to have been practised on the court, held that such

fraudulent act can be recalled by the court at any time. It was held

that if a consent decree is challenged on the ground that the party

did not give the consent, then the court has duty to set aside the

decree if finds that the court was induced into passing the decree on

a fraudulent representation; however if the case of the party

challenging the consent decree is that he was in fact a party to the

compromise but his consent had been procured by fraud, the court

passing the consent decree has no inherent power to investigate the

matter and the only remedy is to institute a suit. The provision of

Order 23 Rule 3 or Rule 3A introduced by the 1976 amendment of

CPC were not for discussion in that judgment and in fact the

withdrawal of suit and application for restoration were both of prior

to the coming into force of 1976 amendment.

(B) URI Civil Contractor AB Vs. Mrs. Pampa Mukherjee 56

(1994) DLT 608. In this case the Court passing the compromise

decree had on an application for setting aside the same, framed

issues. Revision was preferred to this court against that order. This

Court found that on averments in the application, no case of fraud

practised on Court was made out and thus the Court passing the

compromise decree had no power to entertain an application for

setting aside the compromise decree.

The senior counsel for the plaintiff has contended that where a

fraud has been practised on the court, the bar of Section 3A will not

come in the way and a independent suit would be maintainable to set

aside a compromise decree on the said ground. However, I am

unable to find the said proposition flowing from this judgment. On

the contrary, this judgment expressly notices Rule 3A of Order 23

and reiterates that the only remedy for seeking setting aside of the

compromise judgment is by applying to the court which had passed

the judgment. In fact, this judgment purports to narrow down the

scope of inquiry in the said application also only to the cases where a

case of fraud practised on the court is made out and the application

to the same court also being not maintainable where the case is of a

fraud practised on the other party.

(C) Ram Kishan Vs. Smt. Sardari Devi MANU/PH/0544/2002

where a single judge of the Punjab High Court following a Division

Bench of that court held an independent suit to be maintainable. It

must however be noticed that the single judge while holding so

expressed reservations about the correctness of the law laid down by

the Division Bench of Punjab High Court, in view of Order 23 Rule

3A CPC.

With respect, I am unable to follow the dicta in view of express

provision of law

(D) Pushpa Devi Bhagat Vs. Rajinder Singh (2006) 5 SCC

566 only for the purposes of reference thereto being made in the

next judgment cited below. This judgment otherwise is concerned

with nature of consent decree and appealability thereof and not with

Order 23 Rule 3A.

(E) Gopal Mohan Vadhera Vs. Jagdish Rai Vadhera 2008

(100) DRJ 371. In this case an application was filed for setting aside

of a consent decree passed by this Court. A Single Judge of this

Court noticed the observations of the Apex Court in Dadu Dayal

Mahasabha (supra) that where there was no fraud on the court, the

remedy of party challenging the consent decree was to institute a

suit; and also the observations of Apex Court in Pushpa Devi

Bhagat (supra) that only remedy of challenge to the consent decree

was by filing an application to the court passing the compromise

decree, under the proviso to Order 23; it was observed by the Court

that there was an apparent conflict between the two decisions of the

Apex Court.

I may however, with respect, observe that there is no conflict.

As held by me above, Dadu Dayal Mahasabha was not a case of

consent decree, further that related to a case of prior to induction of

Rule 3A in Order 23 by the 1976 amendment. Then, an independent

suit was of course possible. However, after the said amendment it is

barred, as held in Pushpa Devi Bhagat.

18. Thus, none of the judgments cited by senior counsel for the

plaintiff are found to be laying down that an independent suit lies to

set aside a compromise decree. Rule 3A of Order 23 is unequivocal in

this regard and does not permit any distinction to be made between

suits where challenge to compromise decree is on the plea of fraud

having been played on the Court as distinct from cases where plea is

of fraud having been played by one party on the other. The law is, no

independent suit lies and the only remedy is by way of an application

before Court passing the consent decree.

19. I find that a Single Judge of this court in Uttam Chand Bhatia

Vs. Amir Chand Bhatia Suit No.284/1984 decided on 6th December,

1984 and which was followed in Joginder Singh Bedi Vs. Bawa

Darbara Singh 39 (1989) DLT 270 has unequivocally laid down that

bar of Rule 3A is a complete bar and no suit lies for setting aside

compromise decree on any ground. I also find that the Apex court in

Banwari Lal vs. Smt. Chando Devi AIR 1993 SCC 1139 has also

held that the only remedy of a party which is the party to a

compromise decree and challenging the same, is to apply to the

same court and no independent suit lies.

20. The senior counsel for the plaintiff has contended that the suit

qua the other reliefs i.e. of declaration qua the documents executed

subsequent to the compromise decree and for the relief of possession

of the property which was the subject matter of the agreement with

respect to which the compromise decree was passed is maintainable.

However, I do not find any merit in the said contention also. The

plaintiff is not entitled to the said reliefs without the first relief.

Moreover, if the plaintiff is found entitled to the first relief, the

provisions of Section 144 of the CPC would come into play in as

much as in that situation the compromise decree would be set aside

and under the said provision, upon the same happening, the court on

an application is empowered to undo all that had been done in

pursuance to the said compromise decree. Rule 3A of Order 23

cannot be permitted to be defeated by pleading that the suit is for

setting aside/challenging acts done in pursuance to compromise

decree and not for setting aside the compromise decree.

21. I have enquired whether the defendants are claiming any title

in the documents executed consequent to the compromise decree or

in the property possession whereof the defendants are pleaded to

have taken directly from the DDA, independently of the compromise

decree. Nothing is pointed out. There is no pleading to that effect

nor does it flow from any of the documents. Of course, the

documents do not mention the compromise decree but the rights

thereunder are found to be flowing from the compromise decree

itself. Moreover, the case of the plaintiff for declaration of the said

documents as bad and for possession is only on the basis of invalidity

of the compromise decree. Thus I do not find the other reliefs also to

be outside the ambit of Rule 3A of the CPC. The factum of defendant

No. 2 & 3 herein being not parties to suit in which compromise

decree was passed also does not come in the way. They are not

claiming any right in the plot. The Power of Attorney in favour of

defendant No. 2 is stated to be executed in consideration of

agreement to sell in favour of defendant No.1

22. The senior counsel for the plaintiff has on the aspect of Section

47 of the CPC referred to Addisons Paints and Chemicals Vs. M/s

Sant Ram Parma Nand AIR 1976 Delhi 137 inter-alia holding that

Section 47 is not intended to be used for the purposes of

investigating matters relating to the validity of the decree itself,

when on the face of it there is nothing illegal about the decree and

that the court executing the decree is not competent to embark on

an inquiry into facts which if established will tend to show that the

court passing the decree had no jurisdiction to do so. However since

the suit has been found to be not maintainable under Rule 3A of

Order 23, it is not deemed necessary to deal with the aspects of

Section 47 of the CPC and of the limitation.

23. The suit is thus not found to be maintainable. The plaintiff shall

of course have the liberty to take appropriate proceedings in law if

any available to them for setting aside of the compromise decree.

The suit is dismissed.

24. The senior counsel for the plaintiff has requested for refund of

the Court fee of about Rs. 1,00,000/- paid on the plaint. Reliance is

placed on Aya Singh vs. Munshi Ram 1968 DLT 310 (DB). It is

argued that the courts have inherent powers to refund the court

fees. The Division Bench in this case was concerned with excess

court fee paid under a mistake; the counsel was found to be not

regularly practicing at the bar of this Court; though merely for the

reason of array of authorities, the inherent power of Court to refund,

was upheld but it was further laid down that the power is not to be

exercised in every case but dependent on facts of each case. The

senior counsel for the plaintiff has urged that the plaintiff No. 1 is a

widow and has already suffered and inherent power be exercised in

her favour. I am unable to at this stage hold the equities in favour of

plaintiffs. The plaintiffs have admittedly received sale consideration

as noticed above. The pleas of plaintiffs of circumstances in which it

was received have not been adjudicated. The transaction impugned

is stale. The cause of action for the suit was pleaded as the enquiry

initiated by this court on its administrative side against defendant

No. 3. The plaintiff being possessed of monies received against the

transaction impugned can spend some money out of it in court fees.

No case of mistake is made out. The suit has been filed by seasoned

advocates. The plaintiff was represented in this Court by senior

counsel of this Court. Even after the Court had expressed reservation

about maintainability, full hearing has been availed. A growing

tendency has been observed. The litigants feel their court fee is

justified only when court's time is taken over years. Whenever the

courts endevaour to dispose of lis early, demands for refund of court

fees are made. This cannot be permitted. Rates of court fees were

not prescribed on presumption of proceedings pending for years. The

legislature has not provided for refund of court fees on rejection of

plaint. In this present case, had this suit not been dismissed at

threshold, if the view expressed by me above is correct, it would

have been dismissed later; by that time other remedies may/may not

have been available to plaintiff. In that sense early dismissal has

done more good than harm to the plaintiff. I am in the circumstances

not inclined to order immediate refund of court fee to the plaintiff.

However, in the event of plaintiff making an application before the

Court passing the decree and further in the event of plaintiff

succeeding in establishing a case of fraud as pleaded, the plaintiff

shall be entitled to refund of court fees. In the event of plaintiff filing

certified copy of judgment setting aside the compromise decree

impugned in this suit, the necessary certificate of refund of court

fees be issued.

RAJIV SAHAI ENDLAW (JUDGE) May 20, 2009 PP/rb