9911796707
TMI Blog2009 (2) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... ards an order of mutation carried out in the Revenue records pursuant to or in furtherance of a transfer made by one Raghuvir Singh in favour of his wife and son stated to be under an oral gift deed representing himself as the successor of Bhanumal was in question. We would refer to the respective claims made in the said suits a little later. We may, however, at this stage, notice the genealogical tree which is as under : 4. Raghbir Singh is said to be the third cousin of Banu Mal. Banumal is said to have executed a Will in favour of Munni Devi on or about 14.11.1937. He is again said to have executed a Will in favour of Raghbir Singh on or about 27.3.1943. According to the plaintiff, Raghbir Singh had acquired life interest in the purporting said Will without having any right to alienate, transfer, mortgage or creating any charge on the properties situated in various villages, namely, Rapri, Radur, Ghesfur etc. 5. In Suit No.185 of 1989, the cause of action is said to have arisen when order of mutation was passed in favour of the transferees of Raghbir Singh. Whereas the decree prayed for in Suit No.303 of 1992 was for a declaration that Raghubir Singh was only having a life int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed and therefore, he was not present before the revenue officer, at the time of sanction of that mutation." 6. The cause of action for institution of the Suit No.303 of 1992 is said to have arisen as Raghbir Singh had not carried out the testator's intentions contained in the said Will dated 27.3.1943 and, thus, violated the terms of the 'trust' and despite having been called upon to handover possession failed and/or refused to do so. 7. The properties in suit involved in both the suits were also different. Whereas in Suit No.185 of 1989, the subject matter of the suit was 835 kanals and 7 marlas of land (485 acres) situated in the revenue estate of village Rapri in the State of Haryana, the subject matter of in Suit No.303 of 1992 was the land measuring 221 kanal 8 marlas (about 24-25 acres) situated in village Rapri, Radaur, Ghespur and Dholra). Title Suit No.185 was decreed by a judgment and decree dated 30.10.1996 passed by the Additional Civil Judge, Senior Division Jagadhari, Haryana, holding : "As a result of my findings and observations on above issues and more particularly, on issue No.1, 2 and 9, the suit of the plaintiff is decreed with cost, against the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said property. It is not in dispute that the appellant and/or other heirs and legal representatives of the said Munni Devi were not parties to the said compromise. A compromise was also said to have been entered into by Veena Nirwani-plaintiff with Raghbir Singh and others in Suit No.303 of 1992, the terms whereof read as under : "1. That the suit of the plaintiff is to be decreed as prayed for in the plaint except the land measuring 42 Kanals 3 marlas i.e. 1/3rd share of the land measuring 126 Kanals 9 marlas fully detailed and described in para 'C' of the heading of the plaint. 2. That the defendant No.1 has delivered/handed over the whole property fully detailed and described in the heading of the plaint to the plaintiff and defendants Nos.2 to 6 at the spot and now the plaintiff and defendants Nos.2 to 6 are in actual and physical possession being its owners and defendant No.1 or his successors or LRs will have no right, title or interest of any kind in the land in suit. 3. That the defendant No.1 has an electric tube-well in the area of village Dhaulra and defendant No.1 will be bound to give water for irrigation to the plaintiff and defendant Nos. 2 and 6 for one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge of the High Court by reason of the impugned Judgment. 15. In these appeals, except Veena, all other children of Munni Devi supported the appellant, although they did not file any application for setting aside the said consent decree. 16. Mr. Jayant Bhushan, learned counsel appearing on behalf of the appellant, would submit that the learned Additional Civil Judge, Senior Division, Jagadhari, having opined in its judgment and decree dated 30.10.1996 that not only Veena but also the appellants and her other brothers and sisters were entitled to recovery of possession of the lands in suit, the purported compromise entered into by and between the original plaintiff and the contesting defendants must be held to be illegal and without jurisdiction. The learned counsel submitted that for all intent and purport, the suit was filed by Veena in a representative capacity and, thus, in absence of other heirs and legal representatives of Munni Devi, the compromise petition could not have been accepted. 17. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the respondent, on the other hand, would contend : 1) In terms of Order XXIII Rule 1 of the Code of Civil Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject-matter of the suit: Provided that where it is alleged by one party and dented by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation.-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule." 19. It is not a case where the original plaintiff applied for withdrawal of the suit similicitor. She did so relying on or on the basis of a compromise entered into by and between the parties. If a suit is to be decreed or dismissed on the basis of a compromise, even permission to withdraw the suit pursuant thereto, in our opinion, order XXIII Rule 1 of the Code may not have any application. Even in such a case, a permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit. The Court for the purpose of allowing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a duty to prevent injustice to one of the parties to the litigation. It cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial injustice. A consent decree, as is well-known, is merely an agreement between the parties with the seal of the court superadded to it. {See Baldevdas Shivlal and Another v. Filmistan Distributors (India) P. Ltd. and Others [(1969) 2 SCC 201], Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari and Ors. [JT 2007 (12) SC 352]}. 24. If a compromise is to be held to be binding, as is well known, must be signed either by the parties or by their counsel or both, failing which Order XXIII, Rule 3 of the code of Civil Procedure would not be applicable. {See Gurpreet Singh v. Chatur Bhuj Goel [(1988) 1 SCC 270]} In Dwarka Prasad Agarwal (D) By LRS. and Another v. B.D. Agarwal and Others [(2003) 6 SCC 230], this Court held: "32. The High Court also failed and/or neglected to take into consideration the fact that the compromise having been entered into by and between the three out of four partners could not have been termed as settlement of all disputes and in that view of the matter no compromise could have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pass his title by way of oral Hiba/gift in favour of Raghbir Singh, subject to the conditions in the Will, his title must be held to have been accepted. Bhnau Mal, therefore, could dispose of his property in accordance with law. If Raghbir Singh did not acquire any title by reason of oral Hiba, on his death, subject to proof of compliance of the terms of the Will, the same must be held to have vested in Munni Devi and on her death upon her children. 27. Title to a property must be determined in terms of the statutory provision. If by reason of the provisions of the Hindu Succession Act, 1956 the appellant herein had derived title to the property along with her brothers and sisters, she cannot be deprived thereof by reason of an agreement entered into by and between the original plaintiff and the contesting defendants. If a party furthermore relinquishes his or her right in a property, the same must be done by a registered instrument in terms of the provisions of Indian Registration Act. 28. It is also well known that a suit cannot be withdrawn by a party after he acquires a privilege. In R. Ramamurthy Ayer v. Raja V. Rajeswara Rao [(1972) 2 SCC 721], this Court held : "12. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to be vested in the parties to the suit under the decree cannot be taken away by withdrawal of the suit at that stage unless very strong reasons are shown that the withdrawal would not affect or prejudice anybody's vested rights. The impugned judgment of the High Court in which a contrary view has been expressed cannot be sustained." 29. A right to withdraw a suit in the suitor would be unqualified, if no right has been vested in any other party. [See Bijayananda Patnaik v. Satrughna Sahu and Ors. [(1964) 2 SCR 538] and Hulas Rai Baij Nath v. Firm K.B. Bass & Co. [(1967) 3 SCR 886]. 30. If the contention of Mr. Dwivedi that parties had entered into a comprehensive agreement covering both the suits was correct, there was absolutely no reason as to why the appellant or others were not made parties to the second consent decree as well. While entering into a comprehensive agreement, the parties are bound to see that terms of one agreement do not come in conflict with the terms and conditions of the other. When the parties have separately entered into more than one agreement, either one is dependant of the other or both are independent of each other. In the latter case, signing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se and/ or in arriving the said findings, the learned Additional District Judge failed and/ or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable. {See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and Another [(2004) 6 SCC 71]}. It is on the aforementioned backdrop, we may consider the legal effect of non-signing of the compromise petition by the appellant herein as also the respondent Nos. 4 to 8 herein. 34. We have noticed hereinbefore that not only the properties were different, the nature of the litigations was different. Even the parties were different. Both the compromise petitions do not refer to each other. Assuming that the parties knew thereabout, it is beyond anybody's comprehension as to why signature of all the parties were not obtained for the aforementioned purpose, if not for any other reason, but to satisfy the requirements of law. 35. Appeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein this Court observed : "75. By reason of the Notification dated 19-10- 1978, the Central Government has not delegated its power. The 1966 Act has an extraterritorial application. It is not in dispute that no law has been enacted either by the State of Haryana or by the State of Himachal Pradesh. In absence of any law having been enacted to the contrary, the functions under the 1966 Act must be performed by some authority. The Central Government with the consent of the State of Haryana has merely nominated the State of Punjab to do so. By reason thereof, it has not delegated any power. Subsection (1) of Section 72 of the 1966 Act envisages a direction upon the Central Government. Such a direction has been issued by reason of the impugned notification. When a power has been conferred upon the State of Punjab by the Central Government, it exercises a statutory power. It would, therefore, not be a case where the functions of the State Government must be held to be confined to its territorial jurisdiction." The principle enunciated therein is unexceptional but the same has no application in the factual matrix obtaining in this case. 40. The submission of Mr. Dwivedi that by reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... va Mudaliar [AIR 1961 SC 797], whereupon again Mr. Dwivedi places reliance, this Court applied the said doctrine against a presumptive reversioner having regard to the fact and circumstances thereof. We are not concerned with such a case. 41. This brings us to the question of limitation. Article 123 of the Schedule appended to the limitation Act reads, thus : "Description of suit Period of limitation Time from which period begins to run 123 . To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Explanation. -- For the purpose of this article, substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. Thirty days The date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree." 42. There cannot be any doubt that even if an order is void or voidable, the same must be set aside, as has been held by this Court in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470] and Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377]. 43. It is not a case where the Court lacked inherent jurisdiction. It had jurisdiction with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng resulted in grant of a decree, the decree based on compromise was required to be set aside. The compromise may be void or voidable but it is required to be set aside by filing a suit within the period of limitation. {[See Mohd. Noorul Hoda v. Bibi Raifunnisa & Ors. [(1996) 7 SCC 767]}. Limitation is a statute of repose. If a suit is not filed within the period of limitation, the remedy would be barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no reason as to why the factum in regard to passing of the decree could not have been known in July or soon thereafter. 46. The High Court has arrived at a finding of fact that the appellant cannot be said to have acquired knowledge about the passing of the decree on 7.2.2002, stating "... If the said compromise deed dated 24.4.1998 was passed by preponing the appeal fixed in July 1998 her counsel Shri Lalit Gupta could have come to know in July 1998 itself which was the original date fixed in this appeal that this appeal was preponed and compromise decree was passed on 25.4.1998. He could have informed Smt. Sn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree having been passed on 13-12-1988 and an application for setting aside the ex parte decree having been filed on 13-12-1991, the same was barred by limitation. XXX XXX XXX 12. The third ground on which the learned trial Judge dismissed the application for setting aside the ex parte decree was that it was barred by limitation. The said ground in our opinion, is also without substance. The summons had not been duly served upon the appellant inasmuch as the provisions of Order 5 Rule 2 CPC or provisions of Order 9 Rule 6(1)(c) had not been complied with. In that view, the second part of Article 123, in terms whereof an applicant would be deemed to have knowledge of passing of the said ex parte decree would be the date from which the limitation will begin to run, would be attracted in the instant case and not the first part thereof." In that case, the copy of the plaint was not annexed with the summons. Summons was served after the date fixed in the suit expired. The Court had in that situation under a legal obligation to serve another summons fixing another date of hearing in terms of Order V, Rule 2 of the Code of Civil Procedure. It was in the aforementioned fact situation, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding before this Court for such directions. Furthermore, in giving such directions, this Court did not advert to or consider the effect of Anwar Ali Sarkar case which was a binding precedent. A mistake on the part of the court shall not cause prejudice to anyone. He further added that the primary duty of every court is to adjudicate the cases arising between the parties. According to him, it is certainly open to a larger Bench to take a view different from that taken by the earlier Bench, if it was manifestly erroneous and he urged that the trial of a corrupt Chief Minister before a High Court, instead of a judge designated by the State Government was not injurious to public interest that it should be overruled or set aside. He invited us to consider two questions: (1) does the impugned order promote justice? and (2) is it technically valid? After considering these two questions, we are clearly of the opinion that the answer to both these questions is in the negative. No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court held : "18. It is a well-settled principle of law that even a void order is required to be set aside by a competent court of law inasmuch as an order may be void in respect of one person but may be valid in respect of another. A void order is necessarily not non est. An order cannot be declared to be void in a collateral proceeding and that too in the absence of the authorities who were the authors thereof. The orders passed by the authorities were not found to be wholly without jurisdiction. They were not, thus, nullities." Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377], this Court held : "39. An order may be void for one and voidable for the other. An invalid order necessarily need not be non est; in a given situation it has to be declared as such. In an election petition, the High Court was not concerned with the said issue." 49. Even otherwise, we do not think that any error has been committed by the High Court in arriving at the finding that the appellant had knowledge of the passing of the compromise decree much earlier. She did not file any application for condonation of delay. She filed two more applications for recall of the order dated 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
