Santosh Puri vs Anil Puri & Anr.
2012 Latest Caselaw 6215 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Judgment reserved on: 09.10.2012
                                         Judgment pronounced on: 16.10.2012
+      CS(OS) 2338/2012

       SANTOSH PURI                                                    ..... Plaintiff
                                         Through: Mr R.M. Bagai and Ms Damini
                                         Khaira, Advs.

                          versus

       ANIL PURI & ANR.                                            ..... Defendant
                                   Through: None.

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

CS(OS) 2338/2012 and IAs 14118/2012 (O. 39 R. 1&2 CPC), 14119/2012 (for interim directions), 14120/2012 (condonation of delay)

1. This is a suit for declaration, injunction and recovery of money. The

plaintiff claims to be the owner of Property No. A-2/150 Safdarjung Enclave, New

Delhi. The aforesaid property was purchased by late Shri Raj Kumar Puri, husband

of the plaintiff, who expired on 19.06.1986, leaving the plaintiff, two daughters,

namely, Dr. Rita Lingam and Dr. Reena Mohindra and one son defendant No. 1

Anil Puri as his legal heirs. Defendant No. 1 and the daughters of the plaintiff

relinquished their share in the suit property in her favour, as a result of which she

became its absolute owner. It is alleged that since the defendants had been

harassing the plaintiff, she left for Malaysia on 14.11.2001 to stay with her

daughter Rita Lingam, but the misbehaviour of the defendants persisted even after

the plaintiff returned from Malaysia. She, therefore, left for USA on 01.07.2003 to

live with her younger daughter Reena Mohindra and her family. When she

returned to India, after five years, she found that the defendants had trespassed into

several portions of the property and had also rented out two portions of the said

property. Defendant No. 1 filed suit No. 345 of 2008, seeking a decree for

cancellation of the relinquishment deed executed by him in favour of the plaintiff.

The daughters of the plaintiff were also impleaded as defendants in that suit. On

the matter being referred for mediation, the counsel for the plaintiff agreed for

cancellation of the relinquishment deed and giving 29% of the suit property to

defendant No. 1. It was also agreed that the plaintiff would be entitled to 50% of

the rent from 01.06.2010, the house would be sold within one year and 71% of the

proceedings would go to the plaintiff, whereas the remaining 29% would be

retained by defendant No. 1. A decree dated 29.05.2010 was passed in terms of the

settlement arrived at during mediation proceedings.

The case of the plaintiff is that the decree dated 29.05.2010 passed by the

learned Civil Judge is without jurisdiction being barred by limitation since the suit

was filed more than three years after execution of the relinquishment deed. In the

present suit, the plaintiff is seeking a declaration that the decree dated 29.05.2010

passed by learned Civil Judge is null and void. She is also seeking a mandatory

injunction, directing the defendants to remove their goods from the suit property.

She has also sought an injunction directing the defendants not to interfere in her

physical possession of the suit property. Another relief sought by her is a direction

to the defendants to handover Kisan Vikaspatras, which, according to the plaintiffs,

were purchased by them from the rent which belonged to her. She is also claiming

recovery of Rs 27,51,350/- from the defendants.

2. A perusal of the consent judgment dated 29.05.2010 discloses the following

terms agreed between the parties before Mediation Cell:-

a) 25% share in the suit property bearing A-2/150 Safdarjung Enclave, New

Delhi would vest in defendant No. 1 Anil Puri and 75% in the plaintiff Santosh

Puri.

b) the relinquishment deed dated 20.03.2001 stands cancelled;

c) the suit property would be mutated and converted into freehold in the ratio of

25% and 75% in favour of Anil Puri and Santosh Puri respectively and the

conversion charges/stamp duty would be paid by them in the same ratio.

d) the suit property would be sold within one year and on sale Anil Puri shall

get 29% of the sale proceeds, whereas Santosh Puri will get 71% for herself as well

as for her daughters.

e) the rent proceeds with effect from 01.06.2010 shall be divided in equal

proportions between Santoshi Puri and Anil Puri.

f) Santoshi Puri will get the ground floor vacated from tenants within six

months and in case of non-vacation by the tenants even after 06 months, Anil Puri

will get 25% and Santosh Puri will get 75% share in the rent proceeds after 06

months.

g) after vacation of the ground floor by the tenants, Santosh Puri will shift to

ground floor, whereas Anil Puri will remain in exclusive use and possession of the

first floor.

h) the suit property will not be let out to any person in future until sale of the

proceeds.

3. Order 23 Rule 3 of the CPC, to the extent it is relevant, provides that where

it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in

part by any lawful agreement or compromise in writing and signed by the parties,

the Court shall order such agreement or compromise to be recorded, and shall pass

a decree is accordance therewith. Rule 3A provides that no suit shall lie to set

aside a decree on the ground that the compromise on which the decree was based,

was not lawful.

4. In view of the provisions contained in Rule 3A, the learned counsel for the

plaintiff was requested to satisfy me how the suit is maintainable as regards the

declaration that the decree dated 29.05.2010 is null and void and mandatory

injunction directing the defendants to remove their goods from the suit property.

5. In view of the provisions of Rule 3A, if a decree is sought to be challenged

on the ground that the compromise on which it was based was void or voidable

and, therefore, was not lawful, no suit can be filed for setting aside such a decree.

As a necessary corollary, the only remedy available to a party who seeks to

challenge a decree on the ground that the compromise on which it was based was

void or voidable and therefore, unlawful, is either to go back to the Court which

had passed the decree on the basis of such a compromise or to file an appeal in

terms of Section 96 read with Order XLIII Rule 1A of CPC. In view of the bar

imposed by Rule 3A of Order 23, read with the Explanation to Rule 3, there is no

scope for an interpretation that a compromise decree which is voidable and not

void cannot be challenged by filing a separate suit.

6. The question whether a compromise decree obtained by playing fraud upon a

party to the suit came up for consideration before the Supreme Court in Pushpa

Devi Bhagat (D) through LR Smt. Sadhan Rai v. Rajinder Singh and others JT

2006 (6) SC 235. The Supreme Court held that no independent suit can be filed for

setting aside compromise decree on the ground that the compromise was not lawful

in view of the bar contained in Order XXIII of Code of Civil Procedure and 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 in that

event the court which recorded the compromise will itself consider and decide the

question as to whether there was a valid compromise or not.

7. In view of the authoritative pronouncement of Supreme Court in the case of

Pushpa Devi Bhagat's case (supra) and the specific provisions contained in Order

23 Rule 3A of the Code of Civil Procedure read with the Explanation to Rule 3

thereof, there is no escape from the conclusion that irrespective of whether a fraud

is played upon the Court or by one party to the litigation on the other, no

independent suit lies for setting aside the compromise decree on the ground that the

compromise on which the decree was based was unlawful. Such a decree can be

challenged before a Court which passed the decree based on compromise by filing

appropriate application under Section 151 of CPC or before a higher Court, by

filing an appeal.

8. In Banwari Lal, v. Smt. Chando Devi AIR 1993 SC 1139, Supreme Court

held that a party challenging a compromise can file a petition under proviso to R.3

of O.23, or an appeal under Section 96(1) of the Code, in which he can now

question the validity of the compromise in view of R.1A of O. 43 of the Code.

In Morium Bibi and others v. Showkatra Begum and others 1995 AIHC

3720, a Division Bench of Calcutta High Court held that an independent suit,

challenging compromise decree on the ground of fraud or otherwise is not

maintainable and the only forum open to the aggrieved party is to approach the

Court which passed the decree or to file an appeal under Section 96(1) in view of

Order 43 Rule 1-A of CPC.

9. The learned counsel for the plaintiff has relied upon Lachman Singh v.

Hazara Singh 2008(8) SCALE 220, Prem Singh & Ors v. Bubal Singh & Ors

AIR 2006 SC 3608 Noharlal Verma v. Distt. Cooperative Central Bank Ltd.

Jagdalpur AIR 2009 SC 664, SP Chengalvaraya Naidu by LRs v. Jagannath and

Ors. (1994) 1 SCC 1 and Sneh Gupta vs Devi Sarup & Ors. (2009) 6 SCC 194.

10. In Lachman Singh (supra), Supreme Court held that Section 3 of

Limitation Act puts an embargo on the Court to entertain the suit if it is found to be

barred by limitation.

In Prem Singh and Ors (supra), Supreme Court noted that Section 3 of the

Limitation Act provides that irrespective of the fact as to whether any defence is set

out is raised by the defendant or not, in the event a suit is found to be barred by

limitation, every suit instituted, appeal preferred and every application made after

the prescribed period shall be dismissed.

In Noharlal Verma (supra), Supreme Court held that if a suit is instituted,

appeal is preferred or application is made after the prescribed period, it has to be

dismissed even though no such plea has been raised or defence has been set up. In

other words, even in absence of such plea by the defendant, respondent or

opponent, the Court or Authority must dismiss such suit, appeal or application, if it

is satisfied that the suit, appeal or application is barred by limitation.

These judgments are not relevant to decide the question as to whether a

compromise decree can be challenged by way of an independent suit or not.

In SP Chengalvaraya Naidu (supra), Supreme Court held that a decree

obtained by fraud is to be treated as nullity and can be questioned in collateral

proceedings. There is no quarrel with the proposition of law that a decree which is

a nullity in the eyes of law can be questioned in any collateral proceedings. But,

this judgment does not deal with the issue which is involved in the present case.

I have also perused the judgment of Supreme Court in Sneh Gupta (supra).

This judgment does not deal with the issue as to whether the consent decree alleged

to be unlawful on account of the relief claimed in the decree having become barred

by limitation, can be challenged by way of an independent suit or not. This

judgment, therefore, is also of no help to the plaintiff, as far as the issue in hand is

involved.

11. For the reasons stated hereinabove, I am of the view that declaration sought

by the plaintiff cannot be granted in an independent suit and the remedy open to the

plaintiff is to file an application before the Court which passed the decree, seeking

setting aside of the decree on the ground that it was without jurisdiction on account

of the relief claimed in the suit having become barred by limitation by the time the

suit was filed, or to file an appeal on the ground of limitation.

12. As regards the decree of mandatory injunction, directing the defendants to

remove their goods, since under the compromise decree passed by the learned Civil

Judge, defendant No. 1 was entitled to continue in possession of the first floor till

sale of the suit property, this relief is not open to the plaintiff in law unless and

until the consent decree dated 29.05.2010 is set aside.

For the reasons stated hereinabove, the plaintiff is directed to amend the

plaint so as to delete reliefs claimed in para (ii) and (iii) of the plaint. The amended

plaint in terms of this direction be filed within four weeks.

Renotify on 24.01.2013.

V.K.JAIN, J

OCTOBER 16, 2012 BG