Jagdish Chander vs Sri Chand & Ors.
2011 Latest Caselaw 3849 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.93/2011

%                                                        9th August, 2011

JAGDISH CHANDER                                      ...... Appellant
              Through:          Mr. Mohit Ramdeo, Advocate.


                                VERSUS

SRI CHAND & ORS.                                        ...... Respondents
               Through:         None.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

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


VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular Second Appeal filed

under Section 100 CPC is to the two concurrent decisions of the Courts

below, first of the Trial Court dated 4.8.2010, and the second of the

Appellate Court dated 14.3.2011, by which judgments, the plaint of the

appellant/plaintiff has been rejected under Order 7 Rule 11 CPC on

account of the same being barred by time.


2.            The facts of the case are that certain parcels of land in village

Rajokri, Delhi were sold by father of the appellant to the respondents in

the year 1993. The appellant thereafter filed an application before the

Revenue Assistant in the year 1997 under Section 11 of the Delhi Land
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 Reforms Act, 1954 alleging that the share of his father was wrongly

recorded as 1/6th and 1/4th in two parcels of land whereas the share of the

appellant, and the father and brother of the appellant was 1/18th and

1/12th each. The appellant sought a declaration that he was bhumidar of

1/18th share out of the land khata khatoni no.36/29 and 1/12th share in

khata khatoni no. 37/30 standing in the revenue record by filing an

application.   During the proceedings before the Revenue Assistant on

24.6.2004, the appellant entered into a compromise and signed a

memorandum of understanding with the respondents for amicable

settlement of the dispute and the appellant received a sum of

Rs.1,00,000/- towards "cost of the proceedings".       However it is not

disputed that by virtue of a compromise it was agreed that the appellant

has no right in the land in question and for which a memorandum of

understanding was executed.     Consequently, the appellant withdrew his

application filed under Section 11 of the Delhi Land Reforms Act, 1954 and

which application was signed by the appellant and his counsel.

Subsequently, thereafter on 27.7.2004 the appellant filed an application

under Section 151 CPC stating that a fraud had been played upon him and

that his application under Section 11 of the Delhi Land Reforms Act, 1954

be restored.    The Revenue Assistant dismissed the application which

sought recall of the compromise order.   The appeal filed by the appellant

before the Deputy Collector was also dismissed.      The Deputy Collector

while dismissing the appeal has noted in his order that the father of

appellant had sold his holdings to the respondents through a General


RSA No.93/2011                                                Page 2 of 5
 Power of Attorney and mutation was sanctioned in favour of the

respondents and it appears that there would have been disputes which

led to some dissatisfaction between the two parties with respect to the

value of the land and which were not in the purview of the disputes before

the Revenue Assistant. Further, an appeal filed under Section 66 of Dlhi

Land Reform Act, 1954 before the Financial Commissioner was also

dismissed by a detailed and reasoned order. It was noted in the order of

the Financial Commissioner that when the statement of the appellant was

recorded by the Revenue Assistant with respect to the compromise, his

counsel was also present and the application under Section 11 of the Delhi

Land Reforms Act was withdrawn after receiving the agreed amount from

the respondents. The appellant further challenged the order of the

Financial Commissioner by means of a Writ Petition in the Delhi High Court

and which Writ Petition was withdrawn after addressing arguments

inasmuch as the counsel for the appellant made a statement that the

appellant was in the process of instituting a civil suit to challenge the

settlement as fraudulent. The suit was dismissed as time-barred and the

appeal which was thereafter filed against the order dismissing the suit

under Order 7 Rule 11 CPC being barred by time was also dismissed.


3.              The Courts below have held that there is no question of giving

benefit of Section 14 of the Limitation Act, 1963 to the appellant because

the earlier proceedings which were pending before the Revenue Assistant

were not such proceedings which were initiated in the Court of wrong

jurisdiction.    Cause of action had accrued on 27.7.2004 for which the

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 limitation period expired on 26.7.2007 and the suit was however filed

much later on 22.12.2008.          In fact, the Appellate Court noted that the

appellant did not even file an application under Section 14 of the

Limitation Act.    The Appellate Court has taken a view, and with which I

agree, that once a compromise is recorded in a civil proceeding, the spirit

of Order 23 Rule 3(A) CPC applies that no independent proceedings will be

allowed thereafter to challenge a compromise decree and it is only before

the same Court which recorded the compromise that an application for

recall has to be filed. Admittedly this application for recall was filed and

dismissed right till this Court.


4.           Learned counsel for the appellant sought to argue that he was

entitled to file a civil suit in order to challenge the memorandum of

understanding which was executed pursuant to which the case before the

Revenue Assistant was compromised on 24.6.2004. Firstly, I have already

observed that the spirit of Order 23 Rule 3(A) CPC applies and it was

before the Revenue Assistant himself that proceedings for recall of the

compromise order should have been filed, and which were in fact filed and

thereafter dismissed right upto this Court. Consequently, the issue is not

of entitlement to file the suit but that the suit was filed beyond limitation.

It is trite that there is no question of condonation of delay under Section 5

of the Limitation Act with respect to a suit filed beyond limitation period

and the provisions of Section 14 of the Limitation Act has rightly been held

not to be applicable in the facts of the present case.



RSA No.93/2011                                                   Page 4 of 5
 5.          A second appeal under Section 100 CPC, against two

concurrent judgments of the Courts below will only lie if there arises a

substantial question of law. In the guise of the second appeal, matters

which are already argued and held against the appellant by both the

Courts below by means of valid reasons cannot be said to be a substantial

question of law.


6.          In view of the above, there is no merit in the appeal.    No

substantial question of law arises. Dismissed.




AUGUST 09, 2011                                  VALMIKI J. MEHTA, J.

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