Narayan Parwal vs Union Of India & Ors.
2015 Latest Caselaw 6085 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                     C.R.P. No.122/2015 & C.M. No.15037/2015

                                          Decided on : 19th August, 2015

NARAYAN PARWAL                                    ...... Appellant
            Through:              Mr. J.M. Bari & Ms. Meenakshi Bari,
                                  Advocates.

                         Versus

UNION OF INDIA & ORS.                               ...... Respondents
              Through:            Mr. Anil Sapra, Senior Advocate with
                                  Mr. Kamal Rathi & Ms. Rupali Kapoor,
                                  Advocates.

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

V.K. SHALI, J. (ORAL)

1. By virtue of the present civil revision petition, the petitioner has

challenged the order dated 16.7.2015 passed by the court of Ms. Jasjeet

Kaur, the learned Civil Judge, New Delhi in suit No.223/2013 in case

titled Narayan Parwal vs. Union of India and others.

2. The aforesaid order was passed by the learned Civil Judge rejecting

the two applications filed by the petitioner. The first application was

filed under Order 23 Rule 3A read with Section 151 CPC seeking recall

of the compromise order dated 25.10.2013 on the ground that the fraud

was played upon the petitioner/plaintiff by respondent/defendant Nos.2

and 3 in connivance with one person, namely, Ashok Kumar Khattar.

Similarly, the learned counsel for the petitioner has also contended that

another application under Order 39 Rule 1 and 2 CPC for seeking an ad

interim relief of restraining Union of India from converting the leasehold

rights into freehold in favour of respondent Nos.2 and 3 was also rejected.

3. Briefly stated the facts of the case are that a civil suit for

declaration and injunction came to be filed by the present petitioner

against Union of India making respondent Nos.2 and 3, namely, Unique

Buildwell (India) Pvt. Limited and Trinity Buildcom (India) Pvt. Limited

respectively as parties. It was alleged that a declaration was issued that

the mutation of the property situated at plot No.24, Block No.148 known

as 7 Hailey Road, New Delhi in which the petitioner had interest to the

extent of 9.33 per cent in favour of respondent Nos.2 and 3 to be declared

as wrongful null and void and the same be cancelled. The aforesaid

matter was contested by respondent Nos.2 and 3. During the pendency of

the suit, an agreement was entered into on 25.10.2013 between the

present petitioner and one Ashok Kumar Khattar on behalf of respondent

Nos.2 and 3 by virtue of which Ashok Kumar Khattar had agreed to make

a payment of Rs.1 crores in cash and Rs.1,50,00,000/- by way of cheque

to the petitioner towards the full and final settlement of his claim in the

said property. On the basis of a joint application purported to have been

filed by the petitioner under Order 23 Rule 3A read with Section151 CPC

duly supported by the affidavit of the petitioner and the said Ashok

Kumar Khattar, the suit was dismissed as withdrawn.

4. After withdrawal of the suit on 25.10.2013, the petitioner has filed

the present application under Order 23 Rule 3A CPC claiming that a

fraud has been played on him by Ashok Kumar Khattar in connivance

with respondent Nos.2 and 3 inasmuch as he has not been paid in cash

and the cheque which was issued to him by Ashok Kumar Khattar, was

dishonoured. It has been stated that a cheque of Rs.1 crores was issued in

his favour by Ashok Kumar Khattar drawn on State Bank of India which

was dishonoured as the payment was stopped by the banker of Ashok

Kumar Khattar. On the basis of these facts, the petitioner has claimed

that the decree deserves to be set aside and the matter deserves to be tried.

5. The petitioner in support of his contention has placed reliance on a

judgment of this court to contend that decree which has been obtained by

fraud deserves to be set aside and even the suit which has been withdrawn

will tantamount to a decree.

6. The learned senior counsel Mr. Anil Sapra appearing on behalf of

respondent Nos.2 and 3 has raised preliminary objection with regard to

maintainability of the revision petition; firstly, on the ground that the

present petitioner has filed a composite revision petition against the order

dated 16.7.2015 which rejected his two applications while as he ought to

have filed two separate revision petitions. By virtue of the impugned

order two applications of the petitioner one under Order 23 Rule 3A read

with Section 151 CPC and the other under Order 39 Rule 1 and 2 CPC

was rejected while only one petition has been filed and therefore, the

petition as such is not maintainable.

7. The second submission made by the learned senior counsel for the

petitioner is that as the suit was dismissed as withdrawn, consequently, no

decree was passed and therefore, the present application under Order 23

Rule 3A CPC for setting aside the decree does not arise because

withdrawal of the suit does not tantamount to passing of a decree.

8. Thirdly, it has been contended by the learned senior counsel that a

perusal of Section 115 CPC would clearly show that the revision is not

maintainable on account of the proviso to Section 115 because a revision

would be maintainable only if the rights of the parties are finally

adjudicated by an order against which such revision has been preferred.

It is pertinent in this regard to reproduce the provision of Section 115 of

the CPC, which reads as under :-

"115. Revision.- (1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:--

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

(3) A revision shall not operate as a stay of suitor other proceeding before the Court except where such suit or other proceeding is stayed by the High Court."

9. Even on merits Mr. Sapra, the learned senior counsel has

contended that so far as Ashok Kumar Khattar is concerned, no valid

authority was given to him by respondent Nos. 2 and 3 to enter into an

agreement on their behalf shown by the petitioner and in the absence of

any valid authority having been placed on record, it was not open to the

petitioner to contend that Ashok Kumar Khattar had the authority to enter

into an agreement for and on behalf of respondent Nos.2 and 3.

10. I have considered the submission made by Mr. Anil Sapra, the

learned counsel for the respondents and Mr. J.M. Bari, the learned

counsel for the appellant. I find force in the contention of Mr. Sapra on

all three counts. Firstly, on technicality itself the present revision petition

is not maintainable on account of the fact that the two applications of the

petitioner has been disposed of by a common order and therefore two

separate revision petition ought to have been filed while the present

petitioner has chosen to file only one petition. The second point for

rejection of the present revision petition is that after amendment in 1999

to Section 115 of the CPC the power of revision has been considerably

limited by the legislature. The proviso to Section 115 sub-Section (1)

clearly lays down that power of revision can be exercised by the High

Court only if the applicant who had come in revision and his application

is allowed then it would result in final disposal of the matter. In the

instant case the application of the petitioner for reopening the order by

virtue of which the suit was dismissed as withdrawn if set aside, it would

not result in final disposal of the suit on the contrary, it will open the suit

afresh despite having been withdrawn, therefore, on this short ground

itself the revision petition is not maintainable.

11. Last but not the least, the suit which was filed by the petitioner was

against two companies, namely, M/s. Unique Buildwell (India) Pvt. Ltd

and M/s. Trinity Buildcon (India) Pvt. Ltd. apart from Union of India.

The compromise which was arrived at by the petitioner was with Shri

Ashok Kumar Khattar. The application for compromise was supported by

the Affidavit of the petitioner and Ashok Kumar Khattar although in the

application it has been stated that Ashok Kumar Khattar was duly

authorized by the two private companies but no letter of authority has

been shown to be in existence by the petitioner which authorize him to

settle the matter for and on behalf of these two companies. Ashok Kumar

Khattar was not a party to the suit, therefore, any settlement which was

arrived at between Ashok Kumar Khattar and the present petitioner was

an independent transaction and if at all there was a default in payment of

cash or cheque amount by Ashok Kumar Khattar to the petitioner that

gives rise to a separate cause of action to the petitioner to sue Ashok

Kumar Khattar and the suit which has been withdrawn voluntarily by the

petitioner cannot be permitted to be recalled and tried on this ground.

12. I have been given to understand that the petitioner has already filed

a complaint under Section 138 of the Negotiable Instruments Act against

Ashok Kumar Khattar for dishonor of the cheque, if that be so, he can

pursue that remedy. However, the present order of the withdrawal of suit

cannot be permitted to be recalled.

13. For the reasons mentioned above, I feel that the present revision

petition filed by the petitioner is totally misconceived and the same is

liable to be dismissed. The same is accordingly dismissed.

V.K. SHALI, J.

AUGUST 19, 2015 'AA'