Delhi High Court
Vinay Chhabra vs Judge Chawla & Ors. on 13 May, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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+ RFA (OS) 47/2019
VINAY CHHABRA ..... Appellant
Through: Mr. Anil Sharma and Mr. Kumal
Nath, Advocates.
Versus
JUDGE CHAWLA & ORS. .....Respondent
Through: Mr. Rajat Aneja, Mr. Shrey Chathly
and Ms. Bandana Grover, Advocates
for R-1.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE VINOD GOEL
ORDER
13.05.2019
VINOD GOEL, J: (ORAL)
C.M. No.22683/2019 & 22685/2019 (for exemption)
Allowed, subject to all just exceptions.
The applications stand disposed of.
C.M. No.22684/2019 (for delay)
1. This is an application seeking condonation of two days in filing
the appeal. Learned counsel for the respondent states that he does not
wish to file a reply to the application.
2. For the reasons stated in the application, the delay of two days
in filing the appeal is condoned.
3. The application is disposed of.
R.F.A. (OS) No.47/2019 & C.M. No.22682/2019 (for stay)
1. The appellant/defendant No.1 has preferred the present appeal
against the impugned judgment and decree dated 15.02.2019 passed
by the learned Single Judge in CS (OS) No.520/2016 by which the
said civil suit was decreed against him.
2. The impugned judgment and decree were passed by the learned
Single Judge on the consent given by the learned counsel for
respondent No.1/defendant No.1. The operative part of the judgment
reads as under :-
"13. The counsel for the plaintiff, at this stage, without
prejudice to the rights and contentions of the plaintiff and
under instructions of the plaintiff present in Court, to put
an end to the controversy, offers Rs.15,00,000/- to the
defendant No.1 by demand draft in favour of the
defendant no.1 against delivery of possession of the
property.
14. The counsel for the defendant no.1 is agreeable to
the aforesaid proposal.
15. Resultantly, a decree is passed, in favour of the
plaintiff and against the defendant no.1, (a) of recovery of
possession of the second floor comprising of the rear
portion of the terrace of the second floor i.e. third floor
comprising of whatsoever construction may be existing
thereon, as well as above thereon of property No.11-B,
Rajender Park New Delhi; (b) of declaration as null and
void, the sale deeds (i) dated 14th July, 2011 registered as
document no.6797 in Book no.1, Volume 14272 at pages
179 to 188 on 19th July, 2011 with respect to the roof of
the second floor i.e. third floor of the property and (ii)
dated 22nd July, 2009 registered as document no.5212 in
Additional Book No.1, Volume No.13280 at pages 186 to
194 on 22nd July, 2009 with respect to the aforesaid
property and of cancellation thereof; and, (c) of
permanent injunction restraining the defendants, jointly
and severally, from hereafter dealing with the property
with respect whereto the decree for possession has been
passed.
16. It is, however, made clear that the plaintiff shall be
entitled to delivery of possession from the defendant no.1
against payment by way of demand draft in favour of
defendant no.1 of a sum of Rs.15,00,000/- and the
defendant no.1 to simultaneously deliver to the plaintiff
the original sale deeds aforesaid of which cancellation
has been ordered.
17. The plaintiff, on the basis of this judgment and
decree, shall be entitled to approach the concerned
Registrar/Sub-Registrar with whom the sale deeds are
registered, for recording the cancellation thereof in the
records of the Registrar/Sub-Registrar.
18. The parties are left to bear their own costs.
19. The counsel for the defendant no.1 states that the
defendant no.1 is residing in the subject property and
needs time to shift out.
20. The defendant no.1 is granted three months' time
from today to vacate the property, whereafter the plaintiff
shall be entitled to execute the decree.
21. The counsel for the plaintiff, at this stage, draws
attention to the order dated 25th October, 2016 directing
the plaintiff to deposit Rs.70,00,000/- in this Court, to
secure the interest of the then defendant no.4 to this suit
namely Tejinder Singh Yadav, and states that since the
plaintiff has already settled with the said Tejinder Singh
Yadav, the plaintiff is entitled to refund of the said
amount.
22. The counsel for the defendant no.1 has not opposed.
23. The counsel for the plaintiff, on enquiry, states that
under the settlement with Tejinder Singh Yadav, the said
amount has been ordered to be returned to the plaintiff.
24. The amount of Rs.70,00,000/- deposited in this
Court pursuant to order dated 25th October, 2016
together with interest, if any, accrued thereon be
refunded to the plaintiff.
Decree sheet be prepared accordingly."
3. Learned counsel for the appellant contends that the counsel
Mr.Vaibhav Mehra, who had appeared for the appellant had no
authority to make any statement to accept any amount or to handover
the property and the concession given by the learned counsel was
without any authority. He contends that the counsel for the appellant
who appeared before the learned Single Judge has neither informed
the appellant about the alleged offer extended by the learned counsel
for respondent No.1/plaintiff nor taken any instructions from him. He
submits that Sh. Vaibhav Mehra, Advocate has acted beyond
instructions of the appellant. He submits that the statement given by
the learned counsel before the learned Single Judge was mala fide
which cannot bind the appellant.
4. The learned counsel for respondent No.1/plaintiff contends that
the plaintiff had purchased the suit property from respondent
No.3/defendant No.3 by registered sale deed dated 21.06.2007 which
is prior in time to the sale deed dated 22.07.2009 executed by
respondent No.3/defendant No.3 in favour of respondent
No.2/defendant No.2 and the sale deed dated 14.07.2011 executed in
favour of the appellant by respondent No.2/defendant No.2.
5. We have heard the learned counsel for the parties.
6. The appellant/defendant No.1 has nowhere pleaded that the sale
deed in his favour executed by respondent No.2/defendant No.2 (dated
14.07.2011) or the sale deed executed by respondent No.3/defendant
No.3 in favour of respondent No.2/defendant No.2 (dated 22.07.2009)
is prior in time.
7. It is no where pleaded in the grounds of appeal by the
appellant/defendant No.1 that he has taken any action against his
lawyer Mr. Vaibhav Mehra, who represented him in the civil suit for
making statement without obtaining any authority or instructions from
him either to the Bar Council or in any Court of Law. He has not even
indicated having issued any notice to his previous counsel Mr.Vaibhav
Mehra seeking his explanation to make statement on his behalf before
the learned Single Judge on 15.02.2019.
8. Section 96 (3) of the Code of Civil Procedure, 1908 puts a bar
to challenge a consent decree by way of appeal. Section 96 (3) reads
as under :-
"(3) No appeal shall lie from a decree passed by the
Court with the consent of parties."
11. The scope of challenging a consent decree was explained by the
Hon'ble Supreme Court in Pushpa Devi Bhagat v. Rajinder Singh,
(2006) 5 SCC 566 that the remedy available to a party who wants to
challenge the said consent decree is to approach the court which had
recorded the compromise and made a decree in terms of it and
establish that there was no compromise. The Supreme Court held in
Pushpa Devi Bhagat (supra) as under :-
"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.
12. Therefore, we do not find any reason to interfere with the
impugned judgment and decree dated 15.02.2019. Consequently, this
RFA (OS) 47/2019 along with CM APPL. 22682/19 is dismissed with
no order as to costs.
(VINOD GOEL)
JUDGE
(HIMA KOHLI)
JUDGE
MAY 13, 2019
'AA'
