Rajasthan High Court

Ghansi Son Of Late Shri Godu Gurjar vs Narenda Kumar Jain Son Of Shri ... on 22 March, 2022

Bench: Sudesh Bansal

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                   S.B. Civil First Appeal No. 40/2021

Ghansi Son Of Late Shri Godu Gurjar, Aged About 85 Years, R/o
Village Teelawal, Post Jagatpura, Tehsil Sanganer, District Jaipur
(Raj.)
                                                  ----Appellant-Defendant No. 1
                                         Versus
1.        Narenda Kumar Jain Son Of Shri Ummedmal Jain, R/o
          44/203, Rajat Path, Mansarovar, Jaipur (Raj.)
                                                            ----Respondent-Plaintiff

2. Moolchand Meena Son Of Shri Sharwan Lal Meena, Aged About 49 Years, Resident Village Shrangarpura, Tehsil Sanganer, District Jaipur (Raj.)

For Appellant(s) : Mr. Anoop Pareek For Respondent(s) : Mr. Mahendra Shandilya Mr. Rajesh Kapoor (through VC)

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

Reserved On March 16th, 2022 Pronounced On March 22nd, 2022

1. By way of this appeal, Appellant-defendant No.1 has assailed

the order dated 30.01.2018 whereby and whereunder the Court of

Additional District and Sessions Judge No. 19, (Head-quarter

Sanganer), Jaipur Metropolitan, decreed the Civil Suit No. 93/2017

according to the compromise and a decree for specific

performance was passed in favour of respondent No. 1/ plaintiff

and against the appellant and respondent No. 2 (defendant Nos. 1

& 2).

(2 of 12) [CFA-40/2021]

2. Learned counsel for the appellant submits that though as per

Section 96(3) CPC, no appeal shall lie from the decree passed by

the court with consent of parties, however, the legislature has

added provision of Order 43 Rule 1/A w.e.f 01.02.1974 in the

Code of Civil Procedure and as per this provision, appellant is

entitled to challenge the impugned decree passed on the basis of

a compromise on the ground that the compromise should or

should not have been recorded. Counsel for the appellant

contends that the compromise is not lawful and further fraud has

been played with the appellant by the respondents (plaintiff and

defendant No. 2). Respondents were in connivance against the

appellant and have succeeded in procuring the decree dated

30.01.2018, on the basis of compromise. The compromise & the

order passed on the basis of compromise deed are illegal and

contrary to law and also suffer by fraud and not acceptable to

appellant.

3. Learned counsel for the appellant contends that the appellant

could have also challenged the compromise before the trial court

by virtue of proviso of Order 23 Rule 3 but appellant has a right to

assail the compromise order by way of appeal also. The appellant

has opted the remedy of appeal which should be entertained,

heard and decided on merits. In support of his contentions,

learned counsel for the appellant has placed reliance on the

judgment of the Supreme Court delivered in case of Banwari Lal

Vs. Smt. Chando Devi [(1993) 1 SCC 581].

4. Since there is a delay of about 2 years & 8 months in filing

this appeal, an application (No. 01/2021) under Section 5 of

Limitation Act, has been filed by appellant. Respondent No. 01/

plaintiff has filed reply to the application under Section 5 of the

(3 of 12) [CFA-40/2021]

Limitation Act and opposed the same. The counsel for respondent

No. 2/defendant No. 2 supported the stand of respondent No.

1/plaintiff and orally opposed the application for seeking

condonation of delay.

5. Appellant has also filed an another application (2/2021)

under Section 149 of CPC, to make up the deficit court fees and to

condone the delay in filing deficit court fees.

6. Appellant has also filed other two applications (01/2022 &

02/2022) under Order 41 Rule 27 CPC to produce certain

additional documents on record for consideration at the time of

hearing this appeal. The respondent-plaintiff has filed reply to one

of the application.

7. This court issued notices to respondents and after service of

notices, both respondents have appeared.

8. The record of trial court has also been summoned.

9. Heard counsel for both parties in detail, perused the

impugned order dated 30.1.2018, the compromise deed and the

other documents and material available on record.

10. The brief facts of case are that the appellant was khatedar

and possession holder of agriculture land bearing khasra No. 35 at

Village Teelawal, Sanganer, Jaipur over an area of 16.664 aer. The

appellant at one point of time executed registered sale deed dated

10.03.2011 in favour of respondent No. 2 against a sum of

Rs.76,91,200/- but later on the sale deed was amended on

13.03.2011, part of sale consideration of Rs.42,75,200/- was

refunded to the respondent No. 2. Thereafter due to some brawl

between appellant and his sons for execution of the sale deed, the

appellant and respondent No. 2, executed an another agreement

of consent deed dated 14.3.2011, through which they agreed to

(4 of 12) [CFA-40/2021]

cancel the sale and agreed to refund the remaining balance sale

amount. According to appellant, he has refunded the balance sale

amount to respondent No. 2. The respondent No. 2 assured him to

cancel the sale deed. The appellant never entered into any oral

agreement or written agreement to sale his land to respondent

No. 01-plaintiff nor received any amount of sale consideration

from him.

11. The respondent No. 1 filed a civil suit for specific

performance and permanent injunction against the appellant and

respondent No. 2 herein. The suit was filed on 10.11.2017. In this

suit, the respondent No. 1 referred that appellant had orally

agreed to sale his land to the respondent No. 1 against

Rs.7,50,000/- in September 2005 and out of total sale

consideration, the appellant had received Rs.6,00,000/-, now only

Rs. 1,50,000/- is due to be paid against part of sale consideration.

In this suit it was also mentioned that, in order to frustrate the

oral agreement to sale, the appellant had executed a registered

sale deed dated 10.03.2011 in favour of respondent No. 2. In fact,

this sale deed dated 10.03.2011 (corrigendum deed dated

13.03.2011) is fictitious and ostentatious which is void. In the

plaint, only valuation of oral agreement to sale was made and

prayer was made only for specific performance with permanent

injunction. Neither any valuation of declaring the sale deed dated

10.03.2011 was made nor any prayer to declare the sale deed null

and void was made. Notices of plaint were issued to both

defendants (appellant and respondent No. 2). Notice upon

appellant was not served, however, advocate who appeared for

respondent No. 2 also gave appearance for appellant as well and a

compromise alleged to be entered into between the appellant,

(5 of 12) [CFA-40/2021]

respondent No. 1 and respondent No. 2, was produced on record

on 03.01.2018 and on the basis of said compromise, the civil suit

was decreed against the appellant vide judgment and order dated

30.01.2018, which is impugned herein.

12. The appellant has assailed this compromise as well as the

judgment and order dated 30.01-2018, passed on the basis of

compromise on the following grounds.

Ⅰ Appellant is an illiterate and rustic villager of 85 years old

and both the respondents have entered into a connivance against

him and got decreed the suit against appellant on the basis of

compromise. In fact appellant never entered into any such

compromise with the respondent No. 1 nor ever agreed to sale his

land to respondent No. 1 nor received any sale consideration of

Rs.6,00,00/- nor received Rs.1,50,000/- earlier in compliance of

compromise.

Ⅱ Appellant signed the papers under the impression of

cancellation of his sale deed dated 10.03.2011 with respondent

No. 2, for which both had agreed under the consent agreement

dated 14.03.2011, to cancel the sale deed but later on it revealed

to appellant that in fact respondent No. 2, having connivance with

the plaintiff (respondent No. 1) have got executed the compromise

deed before the court and got executed sale deed dated

23.04.2018, in favour of respondent No. 1 before the Sub-

Registrar. The appellant had no knowledge about the present civil

suit for specific performance filed by respondent No. 1 against the

appellant, and he never executed such compromise before the

court and the same is result of fraud and connivance played by the

respondent Nos. 1 and 2 against the appellant in order to grab his

land.

                                                (6 of 12)               [CFA-40/2021]



Ⅲ    It is highly impossible and impracticable as at one hand

appellant had agreed to cancel the sale deed dated 10.03.2011 for

amounting sale consideration of Rs.76,91,200/- in favour of

respondent No. 2 and had returned the sale amount to him, on

the other hand appellant would agree to sale his land to

respondent No. 1 against an oral agreement to sale that too for

total against Rs.7,50,00/-.

Ⅳ The compromise deed is neither lawful nor should have been

attested or executed in the manner it has been done.

Ⅴ The entire proceedings of execution, attestation of

compromise deed before the court, passing the judgment and

order dated 30.01.2018 by the court and getting sale deed

registered by the appellant in favour of respondent No. 1 is sheer

outcome of the fraud played by the respondent Nos. 1 and 2

having collusion and connivance with each other against the

appellant with a malice intention to grab the land of appellant

without making any payment of sale consideration.

Ⅵ Appellant lodged FIR against respondent Nos. 1 & 2 for

entering into collusion and connivance against appellant but the

police submitted final negative report treating the case as of civil

nature.

Ⅶ Appellant is having actual possession over his land and when

came to know about the impugned judgment and order dated

30.01.2018 passed on the basis of a false compromise deed, is

challenging the same by way of present appeal.

Ⅷ The judgment and order dated 30.01.2018 is wholly being

procured by playing fraud undue influence and the same is non est

and nullity.

                                            (7 of 12)            [CFA-40/2021]



Ⅸ      Appellant came to know about the judgment and order dated

30.01.2018 passed on the basis of compromise, in month of

October 2020 and the delay in filling the appeal is for want of

knowledge of actual facts and about judgment and decree and

also of sale deed dated 23.04.2018.

Ⅹ Appellant has prayed to condone the delay in filing the

appeal and to set aside the judgment and order dated 30.01.2018

as also the registered sale deed dated 23.04.2018, executed in

favour of respondent No. 1 in pursuance of judgment and order

dated 30.01.2018 and to declare the same as void ab initio or non

est.

13. Respondent No. 1 has filed reply to the application under

Section 5 of the Limitation Act and has also opposed the grounds

of first appeal. It has been contended that the appellant himself

signed the compromise deed, appeared before the trial court to

attest the compromise and the judgment and order dated

30.01.2018 was passed with his consent on the basis of

compromise deed. The appellant had received Rs.6,00,000/- in

installment prior to filing of the suit and after the compromise, has

received Rs.1,50,000/-, and thereafter has executed sale deed

dated 23.04.2018, before the Sub-Registrar. The mutation of land

has also been opened in the name of respondent No. 1-plaintiff in

the year 2020. The delayed challenged to the compromise deed

and the judgment and decree dated 30.01.2018, is malicious on

the part of appellant which is not permissible. Counsel for

respondent No. 1 has placed reliance on the judgments of Hon'ble

the Supreme Court Pushapa Devi Bhagat (D) Th.Lr Vs.

Rajinder Singh & Ors [2006(5) SCC 566], Triloki Nath Singh

Vs. Anirudh Singh (D) Thr. Lrs. [2020(6) SCC 629].

(8 of 12) [CFA-40/2021]

14. The respondent No. 2 has supported the stand of respondent

No. 1 to contend that appellant had sold land to respondent No. 1

in 2005. The counsel for the respondent No. 2 contended that

though the appellant made sale deed dated 10.03.2021, in favour

of respondent No. 2 against sale consideration of Rs.76,91,200/-

but the same was void ab initio. Counsel for respondent No. 2

contended that appellant executed the compromise deed and the

judgment and order dated 30.01.2018 was passed in his presence

and with his consent. He contended that delay in filing appeal is

not liable to be condoned.

15. Having heard the arguments of learned counsels for both

parties in detail and after perusal of material on record, this court

is of prima facie opinion that in facts and circumstances of the

present case, several issues related to facts and law have cropped

up in the present matter which require consideration in detail for

adjudication. Firstly, appellant has candidly denied any oral

agreement to sale with respondent No. 1 and has also denied to

receive any amount of sale consideration of Rs.7,50,000/-. The

theory of oral agreement to sale and receiving Rs.6,00,000/- prior

to suit (unstamped receipt dated 11.11.2008, is available on

record) do not inspire confidence. There is no proof on record to

make payment of Rs.1,50,000/- through cheque to the appellant,

pursuant to the compromise deed. Appellant is an old and illiterate

person. At one hand he sold his land to respondent No.2 against

Rs.76,91,200/-, vide sale deed dated 10.03.2011 (which was

agreed to be canceled) and on the other hand, appellant had

agreed to sale his land to respondent No. 01 against

Rs.7,50,000/- only. This creates suspicion above the correctness

of compromise deed. The explanation of appellant is that he

(9 of 12) [CFA-40/2021]

signed the compromise deed and appeared before the court as

well as Sub-Registrar, under the impression that his sale deed with

respondent No. 2 dated 10.03.2011 was to be canceled as per

their consent agreement dated 14.03.2011, because of having

family brawl with his sons, cannot be disbelieved at this stage.

The contention of appellant that he has refunded the sale

consideration of Rs.76,91,200/- to respondent No. 2 and the sale

deed dated 10.03.2011, is a void document also requires

consideration. Notices of appellant were never served upon him,

however, his advocate appeared on next day and appellant agreed

to sale his land to the respondent No. 1 by way of compromise

deed that too only against Rs.7,50,000/-, prima facie do not seem

to be a genuine, more particularly when appellant candidly denies

such compromise deed and alleges it to be suffered with fraud,

collusion and connivance of respondent Nos. 1 & 2. The legality of

compromise is also in question. There are several other multiple

reasons due to which this court is of view that the appellant

should be given an opportunity to assail the compromise deed and

judgment and order dated 30.1.2018, passed on the basis of such

compromise, so as to examine all the issues of facts and law in

the present appeal.

16. As far as, delay in filing this appeal is concerned, it has been

claimed that appellant is an illiterate and old person and belongs

to the rural area. The factum of execution of compromise deed

and passing decree for specific performance against him on the

basis of compromise deed was not in his knowledge. According to

the appellant he came to know about such proceedings in October

2020. The appellant has assigned reasons for want of knowledge

of the actual facts about the compromise deed, impugned

(10 of 12) [CFA-40/2021]

judgment and the sale deed in his application under Section 5 of

the Limitation Act. Respondent No. 1, in reply to the application

has not emphasized as to how the delay on the part of appellant is

malicious. It is cardinal principle of law that unless and until, mala

fides are writ large, the delay ordinarily should be condoned

taking a liberal view of the term "sufficient cause". The length of

delay is not that much important as the reason assigned to

explain the delay. In the present case, appellant is challenging the

impugned decree passed on the basis of compromise, alleging the

compromise deed to be suffered by fraud, misrepresentation and

due to the collusion/connivance of both the respondents against

the appellant. The purpose of limitation is not to scuttle the right

of parties. The judicial courts are meant to advance the

substantial justice and to adjudicate the rights of parties on

merits, instead throwing litigation on technical grounds. This court

can rely on the principle of law as propounded by the Supreme

Court in case of N. Balakrishnan Vs. M. Krishnamurthy

[(1998) 7 SCC 123], the relevant portions of judgment in paras

9,10,11,12 and 13 are reproduced herein-

"(Paras 10 and 11) The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damaged caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up silt finsi littium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.

(11 of 12) [CFA-40/2021]

The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."

"(Paras 9,13 and 12) Condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is not matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. In every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. The words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice."

17. Considering the nature of the dispute between parties

relating to the immovable property, looking to the status of

parties, factum of fraud and connivance and reasons for explaining

the delay, the period of delay of near about 2 years and 8 months

in filing this appeal deserves to be condoned in the interest of

justice. The documents sought to be produced by parties, can be

considered and examined at the time of hearing of the appeal.

Thus, following orders are passed.

A. Application (No. 1/2021) filed under Section 5 of the

Limitation Act, is hereby allowed and delay in filing first appeal is

condoned.

B. Application (No. 2/2021) filed under Section 149 CPC, is

allowed and the deficit court fees paid by appellant is taken on

(12 of 12) [CFA-40/2021]

record, delay in order to make up the deficit court fees is

condoned.

                                   C.     The appeal is admitted for hearing.

                                   D.     Additional documents placed on record by both parties shall

be considered and examined at the time of hearing of the appeal

subject to their admissibility and relevancy with the issues

involved herein, accordingly, applications (No. 01/2022, 02/2022)

and other applications in this regard are disposed of.

E. Until final hearing of the appeal, both the parties shall

maintain status quo as to alienation and possession in relation to

the property in question as it exists today and accordingly the stay

application stands disposed of.

F. Any observations/findings given in the present order would

not affect the case of either of the parties at the time of hearing,

the appeal on merits and all the contentions of both the parties

including factual and legal, would remain open to be addressed