Madhya Pradesh High Court
Ashok vs Padam Chand on 30 January, 2025
Author: Anil Verma
Bench: Anil Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 30th OF JANUARY, 2025
FIRST APPEAL No. 252 of 2010
ASHOK AND OTHERS
Versus
PADAM CHAND AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava and Shri S.D.Singh, - Advocates for
the appellants.
Shri K.N.Gupta, Senior Advocate with Shri Rinku Shakya and
Ms. Suhani Dhariwal, - Advocate for the respondent.
ORDER
This first appeal has been preferred by appellants under Section 96 of
the Civil Procedure Code, 1908 (in short CPC) against the impugned
judgement and decree passed by 10th Additional District Judge (Fast Track
Court) Gwalior in Civil Suit NO.-34-A/10, whereby appellant's/plaintiffs suit
for possession has been dismissed.
2. Brief facts of the case are that a Civil Suit for decree of possession
was filed by Late Shri Haridas and after death of plaintiff/Haridas present
appellants being legal heirs were brought on record. In the suit it was
pleaded that the plaintiff has purchased the suit property situated at Sarafa
Bazar, Lashkar Gwalior in auction sale dated 7.4.1964 in execution case no.
29/56-1963 of Second Additional District Judge, Gwalior. Auction was
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confirmed on 16.8.1973 and sale certificate was issued in favor of plaintiff
on 30.8.1973 and as the suit property was in possession of the several
tenants, hence, symbolical possession was handed over to the plaintiff by the
Court on 22 9.1973, hence the plaintiff is owner of the property but the
defendants are in possession of some parts of the property, hence the suit
was filed for possession. Learned Trial Court after recording statements of
the parties passed judgement and decree in civil suit no. 43-A/84 vide order
dated 2.8.2000, accordingly, suit has been dismissed and relief of possession
has been denied.
3.Brief facts of the case further are that in the year 1973, the
defendants illegally entered in possession of part of the property without
having any right to remain in possession, hence the relief of possession and
means profit was sought. In the plaint it was also pleaded that Smt. Patto Bai
was the owner of the property who sold out the same to Krishan Bihari on
24.7.41 and Krishan Bihari mortgaged the property on 1.10.48 in favour of
Babulal Suryavanshi and because the amount was not paid by Krishan
Bihari, hence the property was put for auction after trial. The defendants
have obtained an arbitration award on 15.9.83 and on that basis, proceeding
for making award as a rule of court was initiated bearing civil suit no. 43-
A/84, which has been decided on 2.8.2000. But the arbitration award is not
binding upon the plaintiff as the same has been obtained by coercion and by
playing fraud and when the present civil suit was pending in the competent
court and trial court was informed about the arbitration proceedings, hence in
view of provisions of Arbitration Act 1940 the aforesaid award are not
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binding upon the plaintiffs.
4. Defendant/respondent No.2 to 4 denied all these plaint averments by
stating in their written statement that the deceased plaintiff/Haridas was not
the owner and possession holder of the suit property and the defendants are
the owner of the property and the whole disputed property is occupied by
tenants of the defendants for the last 40 years. Earlier Bulakhi Das filed a
suit with regard to possession of the house and aforesaid suit was registered
as 3/samvat1991. When Bulakhi Das died, his widow Patto Bai contested the
suit. At that time, the forefathers of the defendants were in possession of the
house. Since, then they had been in possession of the suit house. The father
of defendant Gulabchand had cordial relations with family of the plaintiffs,
hence plaintiff participated in the auction proceedings on behalf of the
defendant and the sale amount was paid by defendants. Thereafter, vide a
joint agreement dated 28.09.1983, plaintiff and defendants had appointed
arbitrators namely, Balkrishan, Namonanrayan, Phoolchand and Mahaveer
Prasad for deciding their disputes and arbitrators handed over their award on
15.09.1983. As per the award, it has been held that both the parties withdrew
the pending civil proceedings and the plaintiff Haridas would execute
registered sale deed of the house in favour of the defendants. The defendant
Padamchandra would be entitled to receive the rent from the tenants of the
House and defendant No.2 shall pay an amount of Rs. 2,75000/- to the
plaintiff in a consideration of execution of sale deed. Suit filed by the
plaintiff has been dismissed on 02.08.2000. Appeal filed by the plaintiff has
also been dismissed and judgement of rule of court has been upheld. Hence
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the civil suit is not maintainable as per the principles of res judicata deserves
to be dismissed.
5. On the basis of the aforesaid pleadings, the trial court has framed the
issues and both the parties were directed to adduce their evidence. After
completion of the evidence of both the parties, trial court while appreciating
the evidence available on record, passed the impugned judgement and
decree, whereby the suit of plaintiff has been dismissed. Being aggrieved by
the same, the appellant/plaintiff has preferred this first appeal.
6. Learned counsel for appellant contended that trial court erred in not
considering the order dated 24.02.1992 passed by this Court in Civil
Revision No. 34/1991. As per the order dated 24.02.1992, appellant has
amended the plaint and specific pleading in paras 8-A and 8-B of the plaint
was placed on record. Finding of the civil suit No. 43A/1984 is not binging
upon the plaintiff and the suit should have been decided independently by the
trial court. Earlier suit was filed on 11.01.1982 and subsequently the suit No.
43A/1994 was filed on 23.12.1983 and during the pendency of the suit,
without the leave of the trial court, matter could not be referred to the
arbitrator. But, the trial court has not considered the provisions of Section 47
and 21 of the Arbitration Act, 1940. Plaintiff has not filed any application
under Order 23 Rule 1 of the CPC in Civil Revision 34/1991. If both the
parties are not agreed to accept the terms and condition of the compromise,
the court should decide the matter on merits, not on the basis of arbitration,
but trial court has erred in not pursuing the order passed by the High Court.
So called agreement dated 28.02.1983 was wrong and against the law.
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Impugned judgement and decree passed by the trial court is erroneous and
against the law and fact. The trial court has committed an error in dismissing
the civil suit and ignored and pleadings and evidence adduced by the
appellant. Hence, he prayed that the impugned judgement and decree be set
aside.
7. Per contra, learned counsel for respondents opposed the prayer, by
supporting the impugned judgement and decree passed by the trial court by
stating that the impugned judgement and decree is based on cogent evidence
adduced by the respondents. Respondents have legally purchased the suit
property in an auction sale, which has been duly confirmed by the civil
Court. Award passed by the arbitrator became court of law by the
confirmation of the order passed by the High Court. Therefore, this appeal
deserves to be dismissed.
8. Learned counsel for both the parties heard at length and perused the
entire record with due care.
9. First of all it would be highly appropriate to consider the application
filed vide I.A. No. 599/2025 under Order 41 Rule 27 of the CPC filed by the
appellant.
10. By way of application learned counsel for appellant contended that
original plaintiff Haridas was seriously ill and during the pendency of the
civil suit underwent an operation of throat gland removal, therefore, he was
unable to speak properly hence he could not mark the exhibit to the aforesaid
documents during his deposition. These documents are necessary for proving
the factum of forgery, misrepresentation and coercion done with plaintiff-
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Haridas. Hence, he prayed that these documents be taken on record.
Order 41 Rule 27 of the CPC provides as under-
"Production of additional evidence in Appellate Court.
-(1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral documentary, in the Appellate
Court. But if-
(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes
that notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise of
due diligence, be produced by him at the time when the decree
appealed against was passed, or
(b) the appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, or
for any other substantial cause, the Appellate Court may allow
such evidence or document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its
admission."
11. But, in the instant case, appellant did not produce any proper
explanation that why these original documents were not produced before the
trial court in exercise of due diligence. Plantiff- Haridas/PW-1 in the cross-
examination before the trial court categorically admits that he possess all
these documents, but he did not produce the same. Therefore, the aforesaid
reason assigned by the appellant that at that time, appellant-Hardias could not
exhibit the aforesaid documents, does not appear to be proper because, apart
from the plaintiff-Haridas, other plaintiff were also available as a party in the
proceedings and even plaintff/Haridas was duly represented by his counsel.
These documents were filed after a delay of almost 40-45 years. There was
an ample opportunity to produce these documents before the trial court. But,
the same were not filed by the plaintiff and no satisfactory explanation has
been given for their non-production at the earlier stage. It is also noteworthy
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that most of the documents are not the public documents and without any
formal proof, these documents cannot be accepted at this stage. Therefore,
these documents cannot be taken on record. Hence, the application I.A.
No.599/2024 filed by the appellant under order 41 Rule 27 of the CPC is
hereby rejected.
12. Learned counsel for respondent contended that trial court has held
that the plaintiff is the owner of the disputed property and defendants'
possession over the suit property is not adverse. But, the trial court has
dismissed the suit on the ground that the plaintiff could not prove that the
award dated 15.09.1983 (Ex-D-5) was obtained by the defendants by putting
the plaintiff under pressure and threat of initiating various proceedings
against him.
13. Learned counsel for the appellant contended that the award dated
15.09.1983 is void and ineffective since the same has been obtained by the
respondents/defendant by putting the plaintiff/Haridas under pressure and
threat by initiating the various criminal proceedings and by sending him
notice through the district administration. Plaintiff-Haridas was even
abducted by the defendants therefore, the defendant/respondents are not
entitled to get benefit of aforesaid award dated 15.09.1983.
14. Appellant/plaintiff has challenged the aforesaid award. It is also
noteworthy that Additional District Judge Gwalior in Civil Suit No.
43A/1984 allowed the application filed by the respondents under Section 14
(2) r/w Section 17 of the Arbitration Act, 1940 and directed for making the
award as the rule of court and for passing the judgement and decree in terms
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of the arbitration award dated 15.09.1983. Appellants have also challenged
the aforesaid order passed by the civil court before the High Court vide M.P.
No.674/2000, which has been decided vide order dated 05.04.02006. The co-
ordinate Bench of this Court dismissed the petition filed by the appellant on
the ground that the appellant cannot raise objection under Section 47 of the
Arbitration Act by filling this appeal under Section 39 of the Act, 1940.
15. It is well settled position of law that ordinarily it is not open to the
appellate court to substitute its on opinion, unless it is shown that the court
below has acted unreasonably or capriciously or has not adopted the general
approach of the matter. And the appellant court not make out a case for
interference and could not show that how the judgement of the court below
making the judgement as rule of court is unjustified. On the basis of the
aforesaid, appeal has been dismissed by High Court by maintaining the order
passed by the civil court. Appellant did not challenge the aforesaid order
before any higher court, therefore, in the absence of challenge of the order
dated 05.04.2006 attained finality and also binding upon the appellant.
16. After dismissing the appeal of the respondents by this Court the
appellants again preferred an execution proceeding before the court of
Additional District Judge, Gwalior which is registered a case No. 43-
A/84/2001. Before the Executing Court the respondents filed an application
for staying the execution of the award and the judgment and decree passed
by the Court in Civil Suit No. 43-A/84. The Executing Court rejected that
application vide order dated 11.01.2008. Against the aforesaid order the
respondents filed a writ petition No.1518/20189( Ashok Kumar and other
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Padamchand and ors). Co-ordinate Bench of this Court dismissed that writ
petition vide order dated 12.08.2008 with the following observation with cost
vide order dated 12.08.2008:-..
"12. It is well settled that the executing Court is bound by the
terms of decree. Section 35 and 46 of the Act will not be made
applicable and the executing Court has not committed any error in
rejecting the stay application. The reasons assigned by the
executing Court is based on appreciation of the order passed by
this Court in Civil Revision No. 34/91 on 28.02.1992 and the
order dated 05.04.2006 passed in M.A No. 674/2000. Under
Article 227 of the Constitution of India this Court under its power
of superintendence can interfere in the order passed by the Court,
if illegalities are found in such order. Herein the present case,
considering the totality of the facts and circumstances of the case,
material on record and approach of the executing Court, it can not
be said that the grounds have been made out by the petitioners
warranting interference by this Court. That being so, I am not
inclined to interfere in the impugned order passed by the
executing Court in exercise of writ jurisdiction because no case is
made out by the petitioners for quashing the impugned order. The
writ petition filed by the petitioners has no merit is accordingly
dismissed with cost."
17. From the particular facts of the instant case, it is clear that in
pursuance to the arbitration agreement, the Arbitrators conducted the
arbitration proceedings and thereafter pronounced their award. Then the
appellants filed an application before the District Court under the provisions
of the Arbitration Act for making the award as rule of the Court. In the
aforesaid proceedings the respondents filed their objections which were
rejected by the trial Court vide order dated 19.12.1990 passed in Civil Suit
No. 43-A/84. Thereafter, a civil revision No. 34/1991 was filed before this
Court by the respondents challenging the aforesaid order and which has been
decided vide order dated 24.02.92. Thereafter, vide order dated 02.08.2000
the Additional District Judge ordered making the award as a rule of the Court
and passed the judgment and decree in accordance with the Arbitration award
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dated 15.09.1983. The aforesaid order dated 02.08.2002 was challenged by
the respondents before this Court in Misc. Appeal No.674/2000. This Court
dismissed the appeal. Thereafter, appellants filed execution proceedings for
execution of the judgment and decree passed in terms of the award in Civil
Suit No. 43-A/84. In the aforesaid proceedings the respondents again filed an
application for stay. That application was rejected. Thereafter a writ petition
was filed before this Court challenging the order of rejection. It was
registered as Writ Petition No. 1518/08. This Court dismissed the writ
petition vide order dated 12.08.2008 with a cost.
18. From perusal of the record it is also proved that the appellant has
preferred writ petition No. 2253/2009 (Smt. Barfi Devi others Vs.
Padamchandra Mittal and others) against the order dated 16.04.2009 passed
by the Second Additional Judge to the Court of First Additional District
Judge, Gwalior in execution case No.43/1984, whereby the executing court
has rejected the application filed for staying the execution proceedings which
is made rule of law during the pendency of the civil suit No. 3A/1982 but
while order dated 21.09.2023, Division Bench of this Court has dismissed
the petition filed by the appellants.
19. Original plaintiff Haridas/PW-1 had been examined before the trial
court and he categorically deposed in this statement that he has singed the
document Ex. D-1 to D-4. Ex.D-1 is the document by which Haridas has
given his consent for initiating the arbitration proceedings and also for
appointment of the arbitrators. Ex.D-2 is also a consent letter. Ex.D-5 is the
award passed by the arbitrator. If the signature of Haridas on aforesaid
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documents have been taken unknowingly or forcefully, then why plaintiff
Haridas did not launch FIR against the concerned persons, even during the
arbitration proceedings he did not raise the written objection that he has not
signed the aforesaid documents? In the light of the statements of Haridas,
contention of the appellants that signatures of Haridas was taken forcefully
and found is not acceptable.
20. In the case of Prabhudayal Sharma Vs. Ramsevak (W.P.
No.264/1979) vide order dated 08.02.1981 Co-ordinate Bench of this Court
has held as under-
"The consent contemplated by the proviso to section 47 of the
Arbitration Act has to be given to the Court when the award is
taken up by it and is sought to be treated as an adjustment or
compromise under Order 23 Rule 3, as pointed out in the case of
Ram Nagina Singh versus Thakur Ram Janki (A.I.R. 1976
Allahabad 21), in which the case law on the point was discussed in
detail Similar view was held by this Court also in the case of
Bisnath versus Seth Baitimal (1968) M.P.L.J.122), i n which it was
held that consent at the stage when the Court takes into cons1-
deration the question whether the award should he recorded as a
compromise or adjustment would be necessary despite prior
consent outside the Court subsequent to the delivery of the
award."
21. As per the provision of order dated 6 Rule 4 of the CPC
appellant/plaintiff are bound to produce the particulars regarding the forgery,
coercion and misrepresentation committed with plaintiff Haridas but in the
entire pleadings, they have not made any specific pleading for the aforesaid
facts, therefore, without specific pleadings and without specific evidence
adduced by the appellant/plaintiff the aforesaid facts cannot be accepted.
22. It is to be seen that appellants have also preferred a civil revision
No.34/1991 against the respondents, which has been dismissed vide order
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dated 24.02.1992 giving opportunity to the appellant that it would be open to
him press the objections made under the proviso of Section 47, before the
trial court. But in the absence of cogent evidence appellants have failed to
prove aforesaid facts before the trial court. Apart from the above,
appellant/plaintiff also failed to prove misconduct of the arbitrator as per the
Section 30 of the Act, 1940. They also failed to prove that award has been
improperly procured by the defendants.
23. As per the provision of Section 21 of the Act of 1940, arbitration
proceedings has been conducted after giving prior notice to both the parties.
Although in the present case, trial court has not been informed regarding
initiation of arbitration proceedings, but the subject matter of the civil suit
and subject matter of the arbitration agreement is different, therefore,
provisions of Section 47 of the Act, 1940 is not accepted in the instant matter
and no prior permission of the trial court is required for initiating the
arbitration proceedings as already held by the co-ordinate bench of this Court
vide order dated 05.04.2006 in M.P. No.674/2000 and order dated
21.10.2019 passed in W.P. No.2253/2009.
24. On the basis of the foregoing analysis this Court is of the
considered opinion that all these aspects have been duly considered by the
Co-ordinate Bench of this Court in various proceedings initiated between
both the parties and award passed by the arbitrator has been confirmed by the
competent civil court as well as the High Court, there is no patent illegality
has been found in the award and it is not beyond the jurisdiction of the
arbitration. The scope of interference in the matters of award under
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Arbitration Act, 1940 is very limited. Therefore, undoubtedly the order of
arbitration became the rule of court and it attained finality, also became a
decree of the Court and bind upon both the parties. Hence , aforesaid
contention raised by the counsel for appellant cannot be accepted.
25. In the light of the entire discussion, this Court is of the considered
opinion that the findings of the trial court are based on the cogent evidence
available on record. The trial court has not committed any error in relying on
the cogent evidence available on record. Judgements and decree passed by
the trial court is well reasoned and based on the due appreciation oral as well
as documentary evidence available on record. As the appellant/plaintiffs
failed to prove their title and possession over the suit property hence, Trial
Court has rightly dismissed the civil suit filed by the appellant.
26. Therefore, there is no illegality or perversity is found in the
impugned judgement and decree.
27. Hence, this first appeal fails and hereby dismissed. There shall be
no order as to cost.
(ANIL VERMA)
JUDGE
Vishal
