Sikkim High Court
Prameela Gurung vs Urmila Manger And Anr on 3 April, 2024
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Revisional Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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C.R.P. No. 03 of 2022
Prameela Gurung
W/o Late Kumar Thapa,
Aged about 54 years,
Resident of Sadam, Melli,
P.O. & P.S. Melli,
South Sikkim,
Pin No. 737 128.
..... Revisionist
Versus
1. Urmila Manger,
D/o Ujarman Manger,
Aged about 38 years,
R/o Subheney Dara,
Rongli, East Sikkim.
Pin No. 737 131.
2. Bhima Chettri,
W/o Late Kumar Thapa,
R/o Ranipool,
Near M.P.C.S Co-operative,
Ranipool,
East Sikkim, Pin No. 737 102.
.....Respondents
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Civil Revision Petition under Section 115 read with
section 151 of the Code of Civil Procedure, 1908.
(Revision Petition against the Order dated 13.04.2022 passed by the Learned
Civil Judge, East Sikkim at Gangtok in Civil Misc. Case No. 14 of 2020 titled
as Prameela Gurung vs. Bhima Chettri (Thapa) and Anr.)
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Appearance:
Mr. Tarun Choudhary, Advocate for the Revisionist.
Mr. B. Sharma, Senior Advocate (Pro Bono, Legal Aid
Counsel) with Mr. Safal Sharma, Legal Aid Counsel for
the Respondent no.1.
2
C.R.P. No. 03 of 2022
Prameela Gurung vs. Urmila Manger & Anr.
Ms. Lidya Pradhan, Advocate for Respondent no.2.
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Date of Hearing : 07.03.2024
Date of Judgment : 03.04.2024
JUDGMENT
Bhaskar Raj Pradhan, J.
1. Two questions arise for consideration in the
present revision petition. An application for setting aside
the compromise deed entered between the parties in Title
Suit No. 12 of 2018 and the decree passed by the learned
Civil Judge, East Sikkim at Gangtok in Civil Misc. Case
No.14 of 2020 was rejected. The revisionist seeks to assail
the same under section 115 of the Code of Civil Procedure,
1908 (CPC). The proviso to section 115 of the CPC prohibits
this Court from varying or reversing any order made, or any
order deciding an issue, in the course of a suit or other
proceeding, 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. The revisionist
submits that as the Pension Act, 1871 provided that the
pension would be paid to the wife of the deceased person,
the respondents who were not legally wedded wives would
not be entitled to the same as such the compromised deed
entered between the revisionist and the respondents was
liable to be set aside as being barred by law. Thus, in the
Prameela Gurung vs. Urmila Manger & Anr.
facts of the present case the two questions which arises
are:
(i) Is the present revision petition
maintainable under section 115 of the
CPC?
(ii) Whether the Pension Act, 1871 barred the
revisionist from entering into a compromise
deed?
2. The revisionist seeks to assail the Order dated
13.04.2022 passed by the learned Civil Judge, East Sikkim
at Gangtok in Civil Misc. Case No.14 of 2020 rejecting the
application filed by the revisionist under Order XXIII Rule 3
read with section 151 of the CPC holding that the
compromise deed dated 19.12.2019 is not in contravention
to the provisions of section 4 and section 11 of the Pension
Act, 1871 and that the compromise deed is not void and
unlawful. The revisionist also seeks the setting aside of the
compromise decree passed in Title Suit Case No. 12 of
2018 as being unlawful.
3. In the year 2018 Title Suit case No. 12 of 2018
was filed by the respondent no.2 against the respondent
no.1. In the said suit an application under Order I Rule 10
of the CPC was filed by the respondent no.1 to implead the
revisionist, which was allowed. The parties to the present
revision petition claimed to be the wives of late Kumar
Prameela Gurung vs. Urmila Manger & Anr.
Thapa. During the proceedings of the Title Suit the matter
was referred to mediation vide Order dated 05.09.2019. The
matter was amicably settled between the parties. A
compromise deed dated 19.12.2019 was entered between
them. The Title Suit was thereafter, disposed of by the
learned Trial Judge on 27.02.2020 pursuant to which a
decree was passed. The respondent no.1 thereafter, filed
Civil Execution Case No. 10 of 2020. It was at this stage
after receipt of summons from the executing court that the
revisionist moved an application under the proviso of Order
XXIII Rule 3 read with section 151 of the CPC for setting
aside the compromise deed as being unlawful and barred
by law. The revisionist therefore prayed that the
compromise entered between her and the respondents as
well as the decree and order dated 27.02.2020 be set aside
and further the Title Suit may be restored to its stage prior
to the compromise/settlement. By the impugned Order
dated 13.04.2022 this application of the revisionist was
rejected. The revisionist thereafter, filed the present
revision petition seeking to invoke the powers of this Court
under section 115 of the CPC.
4. Heard Mr. Tarun Choudhury, learned counsel for
the revisionist. It is his case that the compromise deed
dividing the pension between the parties is in violation of
the Pension Act, 1871. It is also submitted that the learned
Prameela Gurung vs. Urmila Manger & Anr.
Trial Court acted beyond its jurisdiction in view of the
specific bar of the power of the Civil Court to try and
entertain any issue relating to pension as mandated in
section 4 and 6 of the Pension Act, 1871. Mr. Choudhury
further submits that the compromise deed was also void in
view of section 12 of the Pension Act, 1871. It is submitted
that the learned Trial Court failed to record its satisfaction
that the compromise deed was lawful.
5. Mr. Tarun Choudhury, learned Counsel for the
revisionist supported his argument by placing reliance
upon Deokinandan Prasad vs. The State of Bihar & Ors.1. In
the said judgment the Supreme Court held that the right of
the petitioner to receive pension is property under Article
31 (1) and by a mere executive order the State has no
power to withhold the same. It was also held that the claim
was also property under Article 19(1) (f) and therefore,
order denying the petitioner right to receive pension affects
the fundamental right of the petitioner. It was held that the
payment of pension does not depend upon the discretion of
the State but is governed by the rules and a Government
servant coming within the rules is entitled to claim
pension.
6. Mr. B. Sharma, learned Senior Counsel for the
respondent no.1 submitted that the impugned order was
1 1971 (2) SCC 330
Prameela Gurung vs. Urmila Manger & Anr.
just and legal and may not be interfered with especially in a
revision application under section 115 of the CPC. He
submits that the compromise deed clearly reflects that the
revisionist had consciously signed the same before the
learned Mediator and could not be allowed to resile from it
on the grounds of violation of the Pension Act, 1871. He
further submits that in so far as Sikkim is concerned the
Pension Act, 1871 has not been brought into force as yet. It
is submitted that Sikkim Government Services (Pension)
Rules, 1990 and Sikkim Government Services (Revised
Pension) Rules, 2010 would apply and as such the
argument that the compromise deed was against the
Pension Act, 1871 has no legs to stand on.
7. Mr. B. Sharma, learned Senior Counsel for the
respondent no.1 relied upon the judgment of the Supreme
Court in Tulsa Devi Nirola & Ors. vs. Radha Nirola & Ors.2. In
the said case the Supreme Court examined a denial of
succession certificate under section 372 of the Indian
Succession Act, 1925 by the learned District Judge, East
District, Gangtok which was affirmed by this Court. The
facts revealed that the appellant no.1 therein was the first
wife of the deceased and the appellant nos. 2 and 3 were
children born out of the wedlock. The deceased, during the
2 2020 SCC OnLine SC 283
Prameela Gurung vs. Urmila Manger & Anr.
subsistence of his first marriage, solemnized a second
marriage with respondent no.1 and three children were
born from the second marriage. During his lifetime the
deceased executed a settlement deed by which he divided
his movable and immovable properties between the two
wives before his retirement and thereafter he died. The
appellants applied for a succession certificate, which was
denied in view of the settlement deed dated 30.06.2008.
The appeal was dismissed and the appellants moved the
Supreme Court staking their claim for family pension
under the Sikkim Government Services (Pension) Rules,
1990. The Supreme Court held that the settlement deed
having been acted upon it was not open for the appellant
no.1 to now renegade from the same. It was further held
that the family pension undoubtedly is not part of the
estate of the deceased and will be regulated by the pension
rules which confer a statutory right in the beneficiary
eligible to the same.
8. Ms. Lidya Pradhan, learned counsel for the
respondent no.2 supported the impugned judgment and
submitted that the compromise deed was entered between
all the parties to it including the revisionist and she ought
not to be allowed back out from the terms of the
compromise deed.
Prameela Gurung vs. Urmila Manger & Anr.
9. The revisionist has invoked the revisional
jurisdiction of this Court. It is settled law that this Court
would invoke the power of revision under section 115 only
when it is found that the learned Trial Court has exercised
its jurisdiction not vested in it by law, or failed to exercise
jurisdiction so vested, or to have acted in exercise of its
jurisdiction illegally or with material irregularity. While
examining whether or not to exercise the power of revision
this Court must also be conscious of the proviso thereto
which provides that this Court shall not 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.
10. As noted above the application filed by the
revisionist under Order XXIII Rule 3 of the CPC sought the
setting aside of the compromise entered between the
revisionist and the respondents; the Order and decree
dated 27.02.2020 as well as restoration of the title suit to
its stage prior to the compromise.
11. In the said application it was pleaded by the
revisionist that:-
Prameela Gurung vs. Urmila Manger & Anr.
(i) During the course of proceedings the case
file was forwarded to the Mediation Centre
on 05.09.2019.
(ii) The case file was received from the
mediation centre with the report that the
matter had been amicably settled between
the parties.
(iii) The title suit was disposed of as
compromised in view of the compromise
arrived between the parties before the
mediation centre vide order and decree
dated 27.02.2020.
(iv) That the revisionist had signed on the
compromise deed dated 19.12.2019 without
going through its contents.
(v) That it was the stand of the revisionist in
the title suit that the respondents were not
legally wedded wives of the late husband of
the revisionist.
(vi) That the revisionist had signed the
compromise deed under misrepresentation
that all the retirement benefits of her late
husband was given to her and that the suit
property had been divided by the
respondents between them in equal shares.
(vii) The revisionist came to know about the
compromise deed dated 19.12.2019 on
22.11.2020 when she consulted another
counsel regarding the Civil Execution case
No.10 of 2020.
(viii) When her new counsel explained to her the
contents and effect of the compromise
entered by her she was also informed that it
was barred by section 14 of the Pension
Act, 1871 as also the Sikkim Government
Services (Revised Pension) Rules, 2010
making the compromise void in view of the
Indian Contract Act, 1872.
12. The learned Trial Court considered the grounds
pressed by the revisionist. While considering the allegation
of the revisionist that the compromise deed was executed
Prameela Gurung vs. Urmila Manger & Anr.
by her under misrepresentation, the learned Trial Court
examined section 18 of the Indian Contract Act, 1872
which defines "misrepresentation". The learned Trial Court
noted that the revisionist had not shown how or by whom
she was misrepresented in signing the compromise deed. It
was held that mere statement that she was misrepresented
would not suffice especially when it was admitted by her
that the dispute had been referred to mediation centre for
amicable settlement and there was a report from the
mediation centre that the matter had been settled amicably
between the parties. The learned Trial Court also noted that
the Order dated 27.02.2020 revealed that the revisionist
and the respondents were present when Title Suit No. 12 of
2018 was disposed of and decree drawn by the Court in
terms of the compromise deed. Insofar as the submission
that the compromise deed was against the Pension Act,
1871 the learned Trial Court after examining section 4 and
11 of the Pension Act, 1871 concluded that the Title Suit
No. 12 of 2018 was for declaration, recovery of possession
and other consequential relief in respect of two storied RCC
building and not relating to pension and therefore, it could
not have been barred under section 4 of the Pension Act,
1871. Reading clause 6 of the compromise deed further the
learned Trial Court was of the view that the compromise
deed did not contravene the provisions of section 4 and 11
Prameela Gurung vs. Urmila Manger & Anr.
of the Pension Act, 1871. It was held that the compromise
deed was not void and unlawful. Accordingly the
application under Order XXIII Rule 3 of the CPC was
rejected.
13. This Court does not see any illegality or
material irregularity of the learned Trial Court while
rejecting the application under Order XXIII Rule 3 of the
CPC.
14. In view of the proviso to section 115 of the CPC it
is seen that if the application under Order XXII Rule 3 of
the CPC was made in favour of the revisionist it would not
finally dispose of the suit or other proceedings as in the
application under Order XXIII Rule 3 of the CPC the
revisionist had herself sought inter alia, for restoration of
the Title Suit No. 12 of 2018 to its stage prior to the
compromise deed. In Shiv Shakti Coop. Housing Society,
Nagpur vs. Swaraj Developers & Ors.3 the Supreme Court
opined that on a plain reading of section 115 as its stands
makes it clear that the stress is on the question whether
the order in favour of the party applying for revision would
have given finality to suit or other proceeding. If the answer
is "yes" then the revision is maintainable. But on the
contrary, if the answer is "no" then the revision is not
3 (2003) 6 SCC 659
Prameela Gurung vs. Urmila Manger & Anr.
maintainable. Therefore, if the impugned order is interim in
nature or does not finally decide the lis, the revision will
not be maintainable. The legislative intent is crystal clear.
As noted above the impugned order if it were to have been
passed in favour of the revisionist the suit would continue
from the stage prior to the compromise deed as prayed by
her and therefore, there would be no finality to the suit.
15. On a query of this Court as to whether the
Pension Act, 1871 has been brought into force in Sikkim in
view of Article 371F (n) of the Constitution of India it was
submitted at the bar that the Pension Act, 1871 had not
been extended to Sikkim as yet and therefore, it is the
Sikkim Government Services (Pension) Rules, 1990 and
Sikkim Government Services (Revised Pension) Rules,
2010. Thus, the contention of the revisionist that the
Pension Act, 1871 bars the compromise deed of sharing the
pension with the respondents would not assist the
revisionist in getting the relief prayed for.
16. The admitted facts recorded by the learned Trial
Court reflect that the revisionist had agreed to go in for
Mediation. Mediation is a process whereby parties attempt
to reach an amicable settlement of their dispute with the
assistance of a third person referred to as a Mediator, who
does not have the authority to impose a settlement upon
Prameela Gurung vs. Urmila Manger & Anr.
the parties to the dispute. The Mediators are neutral
persons who encourage the parties to the dispute to reach
an amicable settlement. If after the process of mediation
the records reveal that the parties have arrived at a
settlement and signed on a compromise deed it must be
accepted that the parties negotiated their dispute and
arrived at a settlement unless contrary is proved by the
revisionist. The revisionist, as held by the learned Trial
Court has only alleged that she signed the compromise
deed under misrepresentation. Misrepresentation is a
positive assertion which must be specifically alleged and
proved against a particular person and the bald statement
made by the revisionist would not suffice. There is no other
material placed by the revisionist which would even
remotely give an impression that anybody had
misrepresented the facts to the revisionist to compel her to
sign the compromise deed. The records also reveal that
during the entire process the revisionist was personally
present as well as represented by a counsel. The
compromise deed is signed by the revisionist herself in the
presence of witnesses. The order dated 27.02.2020 records
the presence of the revisionist along with her counsel. The
decree dated 27.02.2020 also records that the decree was
passed in the presence of the parties including the
revisionist in the presence of her counsel. As stated in the
Prameela Gurung vs. Urmila Manger & Anr.
application under Order XXIII Rule 3 of the CPC it is
evident that the challenge to the compromise deed and the
decree was an afterthought when faced with the execution
petition and she consulted a new counsel. Even if it is
presumed that the revisionist was solely entitled to receive
the pension of late Kumar Thapa there would be no bar for
the revisionist to share the pension with the respondents in
the manner sought to be done under the compromise deed.
The compromise deed related not only to the pension but to
other movable and immovable properties of late Kumar
Thapa. The compromise deed records that the revisionist
would be entitled to a portion of the immovable property of
late Kumar Thapa and equal share of the benefits of his
gratuity and pension.
17. It is held that: (i) the revision petition is not
maintainable under section 115 of the CPC; (ii) the Pension
Act, 1871 having not been brought into force in Sikkim as
required under Article 371F (n) of the Constitution of India
is not applicable in the State of Sikkim; (iii) the revisionist
had entered upon the compromise deed on her own volition
without any misrepresentation; (iv) neither the Pension Act,
1871 nor the Sikkim Government Services (Pension) Rules,
1990 and Sikkim Government Services (Revised Pension)
Rules, 2010 prohibited the revisionist from entering upon
Prameela Gurung vs. Urmila Manger & Anr.
such a compromise deed and its terms and conditions are
binding upon her.
18. For all the above reasons this Court is of the firm
opinion that the impugned order passed by the learned
Trial Court need not be interfered with in exercise of the
powers of revision under section 115 of the CPC. The
revision petition is accordingly dismissed. The parties to
bear their own costs. A copy of this judgment be
transmitted to the Trial Court forthwith.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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