Sunita Gupta vs Inderjeet Singh & Anr.
2011 Latest Caselaw 536 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Date of decision:31st January, 2011

 +       I.A. No.2698/2010 (u/S 151 CPC for modification of the order
         dated 18th May, 2009) in CS(OS) No.1167/2008

SUNITA GUPTA                                                               ..... Petitioner
                                       Through:      Mr. Sudhir Nandrajog, Sr. Advocate
                                                     with Mr. Praveen Chauhan, Advocate

                                                  Versus

INDERJEET SINGH & ANR.                                                   ..... Respondents
                 Through:                            None.

                                                  AND

1. MANINDER KUMAR JAIN

2. ALKA JAIN                                                             ..... Applicants

                                       Through:      Mr. Rajesh Gupta, Advocate.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?                                No

2.       To be referred to the reporter or not?                         No

3.       Whether the judgment should be reported                        No
         in the Digest?

I.A. No.2698/2010 in CS(OS) No.1167/2008                                           Page 1 of 10
 RAJIV SAHAI ENDLAW, J.

1. This application has been filed under Section 151 CPC for

modification of terms of compromise as recorded in I.A. No.6506/2009 and

in terms of which compromise the suit was decreed. The applicants were not

parties to the suit or to the compromise aforesaid. They however claim to be

successors in interest and assignees of the defendant no.1 Shri Inderjit Singh

who was a party to the compromise. In terms of the said compromise the

defendant no.1 Shri Inderjit Singh had exclusive rights of ownership and

construction inter alia over the existing roof/terrace above the second floor

of the property No.G-60, East of Kailash, New Delhi, on the condition that

he shall be obliged to at his own cost reconstruct the servant quarters, toilets

and water tanks existing on the said terrace to the roof/terrace of the fresh

construction (of the third floor). It was also recorded in the compromise that

the plaintiff is entitled to two servant quarters and toilets-cum-bath as

existing on the terrace above the second floor.

2. The applicants claim that the defendant no.1 Shri Inderjit Singh sold

the said terrace to one Smt. Sneh Lata Pahuja and Shri Virender Pahuja

(defendant no.3) (and both of whom were also parties to the compromise)

and who in turn sold the same to the applicants; that the applicants submitted

proposal to the MCD for raising construction on the said terrace but MCD

insisted upon the applicants producing a "No Objection" from the other

owners of the building; that while the other owners have given their no

objection, the plaintiff has refused to give the "No Objection" on the ground

that MCD would not permit construction of servant quarters and toilet on the

terrace of the proposed construction. This application has been filed for

modification of the condition in the compromise entitling construction on

the terrace above second floor only subject to shifting of the servant quarters

and toilet on the terrace of the proposed construction and by offering that the

servant quarters and the terrace can be constructed at another appropriate

place which MCD is willing to sanction.

3. Notice of the application was issued and reply thereto has been filed

by the plaintiff. The counsels have been heard.

4. The counsel for the applicants has relied on:-

(i) Order dated 30th March, 2009 of the Supreme Court in Civil

Appeal No.2006-2007/2009 titled Devineni Tirupathirayudu v.

Surapaneni Suramma observing that the only course open to

the legal representatives of a party to a compromise is to apply

for recall of the compromise decree in as much as they cannot

file independent suit challenging the compromise decree in

view of the bar contained in Order 23 Rule 3A of the CPC;

(ii) Pushpa Devi Bhagat v. Rajinder Singh (2006) 5 SCC 566

laying down that since neither appeal nor independent suit is

maintainable against/for setting aside of a compromise decree,

the only remedy available to a party to a consent decree to

avoid such consent decree, is to approach the Court which

recorded the compromise and made a decree in terms of it, and

establish that there was no compromise. It was further held that

the Court which recorded the compromise will itself consider

and decide the question as to whether there was a valid

compromise or not;

(iii) Preetinder Singh v. Gursharan Singh 2010 I AD (DELHI) 657

reiterating the aforesaid position;

(vi) Rajwanti v. Kishan Chand Shehrawat 160(2009) DLT 185

dismissing a suit challenging a compromise decree as not

maintainable;

(v) Judgment dated 21st December, 2007 of this Court in CM (M)

No.483/2003 titled Chanchal Bansal v. Himanshu Bansal,

also holding that the only remedy to lay a challenge to a

compromise decree unlawfully obtained or which is void or

voidable is to move an application before the court concerned

which had passed the decree; Reliance in this regard was placed

on Banwari Lal v. Chando Devi (1993) 1 SCC 581.

5. Per contra, the senior counsel for the plaintiff has relied upon:-

(a) Judgment dated 22nd April, 2008 of the Supreme Court in Civil

Appeal No.953/2004 titled Bholi v. Lachhman Singh laying

down that the terms of compromise having become a decree of

the Court, the Court is functus officio to modify the decree;

(b) Union of India v. Babu Rao 130(2006) DLT 504 (DB)

observing that once the Court had delivered a judgment, it

becomes functus officio and has no right to thereafter entertain

the miscellaneous applications except for correcting clerical

errors.

6. The applicants are seeking modification of the consent decree not on

the ground that the consent thereto of the predecessors in interest of the

applicants was obtained by practicing fraud or undue influence or was no

consent for any other similar reason but owing to the applicants being unable

to obtain permission from MCD for construction of servant quarters-cum-

toilet on the terrace of the second floor with the condition subject to which

the said construction was permitted. The applicants are thus proposing to

change the said condition by proposing construction of the servant quarters-

cum-toilet at some other place. It will thus be seen that the application is not

filed on any of the grounds as were under consideration in the judgments

(supra) cited by the counsel for the applicants. What the applicants are

seeking today is to change/modify the terms of the compromise. The

question which arises is whether the same is permitted and if so in the form

of this application in a disposed of suit.

7. A compromise is nothing but an agreement. The imprimatur of the

Court in accepting the compromise and in passing a decree in terms thereof,

confers the said agreement with the status of a lawful contract. It is not the

case of the applicants that the finding of this Court of the compromise being

lawful is incorrect or that any of the terms of the compromise were unlawful

so as to void the contract. The applicants/are seeking modification of the

compromise on the ground -

A. That the servant quarters-cum-toilet as existing have also not

been sanctioned;

B. That their predecessor Shri Inderjit Singh at the time of signing

of the compromise was not aware of the MCD Bye Laws and

had no idea that servant quarters were not permissible over third

floor;

C. That the servant quarters can be conveniently built with

appropriate sanction from the MCD at another place;

D. That changing/altering the position of the servant quarters does

not violate the compromise;

E. That the condition of shifting of the servant quarters to the

terrace of the third floor was contrary to MCD Bye Laws,

statutory rules and impossible of performance and thus

redundant.

F. That such modification is fair in the facts and circumstances.

8. Section 21 of the Indian Contract Act, 1872 provides that a contract is

not voidable because it was caused by a mistake as to any law in force in

India. Similarly under Section 22 of the Act a contract is not voidable

merely because it was caused by one of the parties to it being under a

mistake as to a matter of fact. It would thus be seen that the grounds taken

by the applicants in the application are not such on the basis whereof it can

be said that the imprimatur of this Court of the contract being lawful is

erroneous or which would entitle the applicants as successor in interest of

one of the parties to the contract to void the contract. Else, a contract is

voidable/void when consent thereto is caused by coercion, fraud or

misrepresentation (under Section19), when consent thereto is caused by

undue influence (under Section 19A), where both parties are under mistake

as to a matter of fact essential to the agreement (under Section 20), when

consideration or object thereof is unlawful (under Sections 23&24), when

without consideration (under Section 25), when in restraint of trade (under

Section 27), when in restraint of legal proceedings (under Section 28), when

uncertain (under Section 29) or when by way of wager (under Section 30).

The applicants have not made out a case under any of the said provisions for

this Court to entertain the application on the said ground.

9. I am otherwise unable to comprehend as to how a party to agreement

can seek change thereof.

10. Faced with the aforesaid, the counsel for the applicants contended that

the servant quarters as existing, are also illegal and liable to be demolished.

He contends that the same are being not demolished and/or the applicants

are not taking any steps with respect thereto for the reason of the same being

a subject matter of the consent decree before this Court.

11. MCD was not a party to the consent decree. This Court even

otherwise was in the suit or in the compromise not concerned with the

legality of the said servant quarters. Thus merely because the servant

quarters as existing, form part of the compromise will not come in the way

of MCD taking action with respect to the same if illegal or liable to be

demolished or the applicants seeking demolition thereof from the MCD or

the plaintiff resisting such action of the applicants or the MCD or the

plaintiff if entitled to, having the said construction regularized from the

MCD.

12. Finding no merit in the application, the same is dismissed. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) JANUARY 31st, 2011 pp..