Delhi High Court
Mamta Dhawan vs Naresh Dhawan on 16 October, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2077/2013 & I.A.No.1788/2014
MAMTA DHAWAN ..... Plaintiff
Through Mr.Vivek Sharma, Advocate.
versus
NARESH DHAWAN ..... Defendant
Through Ms.Sumedha Dua, Advocate.
% Date of Decision: 16th October, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (ORAL):
1. Learned counsel for the plaintiff prays for an adjournment on
the ground that the plaintiff is unwell. However, on the last date of
hearing i.e. 21st August, 2017, this Court had made it clear that it
would not grant any adjournment today. Consequently, the request for
adjournment is declined.
2. It is pertinent to mention that the present suit has been filed for
declaration and permanent injunction on behalf of the plaintiff-wife
and against the defendant-husband.
3. In the present suit, the plaintiff-wife has prayed for a declaration
that the consensual judgment and order dated 10th March, 2016 and the
formal decree prepared on 02nd February, 2013 passed in CS(OS)
No.1222/2004 be declared void, illegal, invalid, arbitrary and
malafide. The plaintiff-wife also seeks permanent injunction
restraining the defendant-husband from acting upon the order dated
10th March, 2006 and the formal decree dated 02nd February, 2013.
4. Mr. Vivek Sharma, learned counsel for the plaintiff states that
the compromise order dated 10th March, 2006 and the formal decree
dated 02nd February, 2013 passed in CS(OS) No.1222/2004 are
vitiated by fraud and misrepresentation perpetrated by the defendant.
He contends that the fraud and misrepresentation committed by the
defendant with respect to the compromise order dated 10 th March,
2006 was not known to the plaintiff when the said order was passed.
5. Mr. Vivek Sharma also states that various properties were
concealed and properties with defective title were given to the
plaintiff.
6. On the other hand, learned counsel for the defendant-husband
states that there exists a consensual judgment and decree dated 10th
March, 2006 passed between the parties. She submits that the present
suit is barred under Order XXIII Rule 3A CPC.
7. She further submits that the issues raised in the present suit has
already been decided by a court of competent jurisdiction vide order
dated 26th August, 2013 in Ex. P.No.122/2013 - which order stands
confirmed by the learned Division Bench and even an SLP against the
same stands dismissed.
8. She lastly submits that the present suit is barred by limitation
under Section 3 read with Article 59 of the Limitation Act.
9. In rejoinder, learned counsel for the plaintiff states that though
the SLP challenging the order dated 26th August, 2013 and the
Division Bench order dated 16th May, 2014 had been dismissed on
account of non-prosecution, yet an application for restoration has been
filed, which is yet to be listed.
10. Having heard the learned counsel for the parties, this Court is of
the view that the present suit is hit by law of estoppel since a consent
decree operates as an estoppel and is valid and binding unless and
until it is set aside by the court which passed the said decree, by an
order on an application under proviso to Order XXIII Rule 3 CPC.
The Supreme Court has further held that a consent decree is a contract
with the imprimateur of the courts superaided. It is something more
than a mere contract and has the elements of both command and
contract. It has also been held that the Court's attempt should be to
give life and enforceability to the compromise and not to defeat it on
technical grounds. (See: Manish Mohan Vs. Ram Bahadur, (2006)4
SCC 416 and PT Thomas Vs. Thomas Job, (2005) 6 SCC 478).
11. This Court is in agreement with the submission of learned
counsel for the defendant that the present suit is barred by virtue of
Section 12 and Order 23 Rule 3A. The said Section and Order are
reproduced hereinbelow:-
A) Section 12 CPC
"12. Bar to further suit.-- Where a plaintiff is
precluded by rules from instituting a further suit in
respect of any particular cause of action, he shall
not be entitled to institute a suit in respect of such
cause of action in any Court to which this Code
applies."
B) Order 23 Rule 3A CPC
"Order 23 -- Withdrawal and Adjustment of
Suits
xxxx xxxx xxxx xxxx
3-A. Bar to suit.-- No suit shall lie to set aside a
decree on the ground that the compromise on
which the decree is based was not lawful."
12. The Division Bench of this Court Supreme Court in Smt.
Simrat Katyal Vs. Shri Varinder Katyal, 2010 SCC OnLine Del 4261
has held as under:-
"39. In almost similar situation, the Apex Court in the case
of Pushpa Devi Bhagat (dead) through LR. Sadhna Rai
(Smt) v. Rajinder Singh and others, (2006) 5 SCC 566, at
page 576 in para 17 laid down as under:
"17. The position that emerges from the amended
provisions of Order 23 can be summed up thus:
(i) No appeal is maintainable against a consent decree
having regard to the specific bar contained in Section 96(3)
CPC.
(ii) No appeal is maintainable against the order of the court
recording the compromise (or refusing to record a
compromise) in view of the deletion of clause (m) of Rule 1
Order 43.
(iii) No independent suit can be filed for setting aside a
compromise decree on the ground that the compromise was
not lawful in view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid
and binding unless it is set aside by the court which passed
the consent decree, by an order on an application under the
proviso to Rule 3 Order 23.
Therefore, 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. 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. This is so because a consent
decree is nothing but contract between parties
superimposed with the seal of approval of the court. The
validity of a consent decree depends wholly on the validity
of the agreement or compromise on which it is made. The
second defendant, who challenged the consent compromise
decree was fully aware of this position as she filed an
application for setting aside the consent decree on
21.8.2001 by alleging that there was no valid compromise
in accordance with law. Significantly, none of the other
defendants challenged the consent decree. For reasons best
known to herself, the second defendant within a few days
thereafter (that is on 27.8.2001), filed an appeal and chose
not to pursue the application filed before the court, which
passed the consent decree. Such an appeal by the second
defendant was not maintainable, having regard to the
express bar contained in Section 96(3) of the Code.
xxxx xxxx xxxx xxxx
42. We are of the view that arguably the only remedy which
lies with the Appellant is to file the application, if
maintainable, before the concerned Court who passed the
consent decree between the parties or to take all the
objections which are available to the Appellant in the
execution proceedings at the time of enforcement of decree,
if situation arises."
13. Consequently, the present suit is barred in law.
14. This Court is also of the opinion that the present suit filed on
25th October, 2013 is barred by limitation as the order sought to be
challenged in substance by the plaintiff is dated 10th March, 2006.
Moreover, as the said order was in the knowledge of the plaintiff way
back on 10th March, 2006, preparation of the decree in 2013 would not
extend the period of limitation.
15. In any event, this Court is also of the opinion that the present
suit is barred by res judicata as all the issues that have been raised in
the present suit have already been decided by a court of competent
jurisdiction vide order dated 26th August, 2013 passed in Ex. P.No.
122/2012 inasmuch as the plea of illegal withdrawal of the Company
Petition No.57/2005 before the CLB and non compliance of the
impugned compromise decree within the time frame prescribed have
already been rejected.
16. The plaintiff's appeal being EFA (OS) No.8/2014 was also
dismissed vide order dated 16th May, 2014. Even an SLP challenging
the said order has been dismissed on account of non-prosecution.
17. Consequently, the present plaint is rejected on the ground that it
does not disclose a cause of action and is barred by law. Accordingly,
the present suit and the application are dismissed.
MANMOHAN, J
OCTOBER 16, 2017
KA
