THE HON’BLE SRI JUSTICE N.V. RAMANA AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR F.C.A. No. 133 of 2008 Judgment: (Per Hon’ble Sri Justice B. Chandra Kumar) This appeal is filed challenging the orders dated 29.07.2005 passed in OP (SR) No. 6335 of 2005 by the Judge, Family Court, Hyderabad, rejecting the unnumbered OP filed by the appellant herein. The brief facts of the case are as follows. The appellant herein is the husband of the first respondent and father of respondents 2 to 4. The marriage of the appellant and the first respondent was performed on 02.11.1967. When disputes arose between them, the respondents filed O.S. No. 81 of 2003 on the file of the Family Court, Hyderabad claiming maintenance from the appellant. Subsequently, they compromised the matter and filed I.A. No.406 of 2004 to advance the suit and record compromise. Accordingly, the suit was advanced and basing on the terms of settlement arrived at between the parties, the suit was decreed. As per the settlement the appellant herein agreed to pay an amount of Rs.2,000/- to the respondents towards household monthly maintenance and that the said amount shall be deducted from the salary of the appellant and shall be deposited to the account of the first respondent. The appellant and the first respondent also agreed to live together. It is also agreed that after the retirement of the appellant and after meeting the marriage expenses of the 4th respondent the first respondent shall be entitled to 50% of all the retirement benefits and also 50% of the pension out of the amount sanctioned to the appellant and she is entitled to withdraw the amounts as agreed from the department. It is also agreed that in the event of unfortunate death of the appellant the respondents shall be entitled to all the retirement benefits and pension of the appellant and in case of death of the first respondent herein, the other respondents shall be entitled to all the retirement benefits. The appellant also agreed to meet the expenditure of the marriage of the 4th respondent herein. The appellant herein filed OPSR No.633 of 2005 praying to declare the above referred compromise decree as illegal, improper, null and void, ab initio and unenforceable in law and not binding on him contending, inter alia, that though he was looking after the first respondent in most affectionate manner, but she was always quarreling with him and not providing proper food and further alleged as follows. He had performed the marriages of all his daughters including respondent Nos.2 and 4 by taking loans from various agencies on interest. On 23.01.2005, the first respondent and his sons, who are under the control of the first respondent, abused and beat him mercilessly. Again on 10.02.2005 the first respondent and his elder son beat him and poured kerosene on him while he was sleeping with an intention to kill him and suddenly he woke up and questioned the first respondent and then she replied that in case if he dies she would enjoy all his pensionary benefits. He was driven out of the house and he was put to great mental agony. He has lost all his faith and trust in the first respondent and his children. It is also his case that he pronounced divorce to the first respondent on 16.02.2005 in the presence of the witnesses before the Quazi, as per Muslim Personal Law. The said divorce was registered at the office of the Chief Quazi, Shariyat Panah Balda, Hyderabad. He had also deposited an amount of Rs.7,500/- in the said office i.e., Rs.700/- towards Meher amount and Rs.1800/- towards the cost of one Deenar-E-Sharai and Rs.5,000/- towards Iddat period maintenance. Thus, his case is that the first respondent is no more his wife and that his sons became majors and they are working as drivers and earning Rs.5,000/- each and that all his daughters are married and that they are not entitled to maintenance. So, his main contention is that in view of changed circumstances the compromise decree obtained in O.S. No. 81 of 2003 has become null and void ab initio and unenforceable under law and that he is not bound to comply with the terms and conditions of the said compromise decree. The lower Court observed that it is not the case of the appellant herein that the compromise decree was obtained by fraud, coercion or threat and that the provisions of Section 31 of the Specific Relief Act will not apply to the facts of the present case since the decree obtained in the above said suit was a valid decree and that it is not a void or voidable decree. Challenging the said finding, the present appeal has been filed. The main contention of the learned counsel for the appellant is that the respondents have beat the appellant on 23.01.2005 and again attempted to kill him on 10.02.2005 and in the above circumstances the appellant pronounced divorce to the first respondent on 16.02.2005 and that the first respondent is not entitled to maintenance and that his sons have become majors and daughters are married and therefore the appellant is not bound by the decree passed in O.S. No. 81 of 2003. It is also his submission that the marriage under Mohammedan Law is a civil contract and that the parties are bound by the rights and obligations and after pronouncement of divorce by the appellant, there is no subsisting marriage between the appellant and the first respondent and their relationship comes to an end and therefore the first respondent cannot claim maintenance or enforce the compromise decree made in the above referred suit. It is also his submission that whether the marriage between the appellant and the first respondent is subsisting or not is a triable issue and when there is triable issue and therefore the plaint cannot be rejected under Order VII Rule 11 CPC. It is also his submission that under Section 31 of the Specific Relief Act, a party to a contract or compromise has every right to challenge the same by way of a separate suit. It is also his submission that the Courts are not debarred from ascertaining the legality of the compromise. He has relied on the judgment reported in Smt. Mohan Bai v. Jai Kishan[1]. Learned counsel for the respondents submitted that the compromise decree in O.S. No. 81 of 2003 was passed basing on the voluntary compromise entered into between the parties and the same cannot be challenged. It is also his submission that the said compromise was acted upon and implemented by both the parties and that the appellant had withdrawn his 50% share out of the retirement benefits and having got benefit out of the compromise the appellant cannot now say that it is void. It is also submitted that the contention of the appellant that he pronounced divorce was not accepted by the Family Court in E.P. No. 22 of 2005 by an order dated 11.12.2006 and that the said order is not challenged by the appellant and therefore became final. It is also his submission that even otherwise the liability of former husband to make a reasonable and fair provision under Section 3(1) of the Act is not restricted only for the period of Iddat and divorced Muslim woman is entitled to reasonable and fair provision for future to be made by former husband. It is also his contention that basing on the subsequent events if any the earlier decree cannot be cancelled. He has relied on the judgment reported in Pratabmull Rameshwar v. K.C. Sethia[2] in support of his contention that the judgments and awards are not the instruments within the meaning of Sections 31 and 39 of the Specific Relief Act. He has also relied on the judgment reported in Dunia Lal Datta v. Nagendra Nath Datta[3]. The only point that arises for consideration is whether the decree passed in terms of compromise can be declared as void? As seen from the above referred facts and circumstances of the case, admittedly, the parties have entered into a compromise voluntarily and they have filed a compromise memo, basing on which, the suit in O.S. No. 81 of 2003 was decreed. It is not the case of the appellant that any fraud was played on him on the date when he entered into the compromise. Thus, it is clear that there was no fraud, collusion or misrepresentation on the date of filing of the compromise memo. Therefore, by stretch of no imagination it can be said that the judgment and decree in O.S. No. 81 of 2003 is void or voidable. The appellant ought to have sought a declaration that the respondents are not entitled to the amount awarded towards household expenses in the impugned judgment and decree or to declare the status of the first respondent by separate proceeding. It has to be seen that the alleged events have taken place after passing of the compromise decree on 16.04.2004. Even if the allegations made by the appellant are true, basing on the same, the above referred judgment and decree which was passed on the basis of compromise cannot be declared as illegal or improper or void ab initio. The learned counsel for the appellant has relied on a judgment reported in Kalyani Straw Boards Limited v. Lala Gopi Krishna, Gokuldas Agencies Firm[4]. In that case the allegation is that the defendant obtained a decree from City Civil Court, Madras by playing fraud and by giving incorrect address. However, the appellant therein filed a suit in the City Civil Court, Hydrabad to declare the decree passed by the City Civil Court, Madras, as null and void. The suit was rejected at the initial stage on the ground that the suit was not maintainable since the cause of action arose at Madras. It was argued that several decisions referred by the plaintiff therein were not taken into consideration by the Court and that a reading of the plaint averments therein reveal that a triable issue arose for consideration. In the above circumstances, this Court held that it cannot be said that the City Civil Court, Madras alone has jurisdiction to try and dispose of the suit and when the plaint averments show that there is a triable issue it is not desirable to hold that the City Civil Court, at Hyderabad has no jurisdiction to try and dispose of the suit. As referred above, the facts of that case are entirely different and not applicable to the facts of the case on hand. In that case there was a specific pleading that the fraud was played on the Court by giving incorrect address. Admittedly, in the case on hand there is no such allegation that a fraud was played on the appellant at the time of passing of the compromise decree. Learned counsel for the appellant has also relied on the decision reported in Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner[5]. In that case the appellants filed a suit claiming to be tenants under respondent No.2-Trust and that they were forcibly evicted. They sought a declaration that they were tenants of the properties described in the plaint and also sought injunction order not to evict them and also sought payment of compensation for the loss caused to them. The defendant-Trust raised a preliminary issue that the plaint is liable to be rejected under Order VII Rule 11 of the Code. Then a finding was recorded that the plaint does not disclose any cause of action and that the jurisdiction vests only with the District Court to give direction to the Commissioner. Challenging the said judgment and decree an appeal was filed. However, the appeal was also dismissed and the matter was carried to the High Court. The High Court also upheld the findings of the Courts below. When the matter was carried to the apex Court, it was found that the main dispute relates to the question of continuance of tenancy and the period of tenancy and those issues were unrelated to the other reliefs which require prior consent of the Charity Commissioner. It was observed that if the plaintiffs give up those reliefs and restrict their claim to the issue of tenancy the suit was maintainable. It was observed that the plaint can be rejected even without intervention of the defendant if the case falls within the clauses mentioned under Order VII Rule 11 CPC. It was further observed that the averments in the plaint have to be read as a whole and cannot be read in isolation and hair-splitting technicalities cannot be adopted by the Court. Thus, it was held that when there are certain issues regarding which the Court has jurisdiction and other issues which take away the claim from the jurisdiction of the Court the plaintiff may be permitted to relinquish some of his claims to bring the suit under the jurisdiction of the Court. Admittedly, the facts of the said case are entirely different and not applicable to the facts of the present case. The only relief claimed in the present suit is to declare the judgment and decree in O.S. No. 81 of 2003, dated 16.04.2004 is illegal, improper, null and void ab initio and unenforceable in law and not binding on the appellant. Reliance is also placed in Smt. Mohan Bai v. Jai Kishan (1 supra). In that case a compromise decree was passed when the matter was pending before the first appellate Court. In the second appeal, the defendant challenged the compromise decree only on the ground that since the compromise was not signed by the defendant and was only signed by her counsel the same could not be acted upon by the Court and no compromise decree on its basis could be passed. But, the defendant did not attack the decree on the ground that she had directed her counsel not to compromise the case. Accordingly, the second appeal was dismissed. Again the defendant filed an application under Section 151 CPC before the first appellate Court to set aside the compromise decree on the ground that she had not directed her counsel to compromise the case. There was a passing remark that the proper remedy of the defendant was to file a civil suit under Section 31 to get the compromise decree cancelled. It was also observed that it would be a travesty of justice if a decree which had attained finality even from the High Court in second appeal could be cancelled by the first appellate Court on an application under Section 151 CPC. It was also observed that Order 23 Rule 3 does not debar a counsel from signing a compromise petition nor it interferes with his inherent right to enter into an agreement or compromise on behalf of a client and the Court can act on the compromise petition which is signed only by counsel for the parties and even if it has not been signed by the parties personally. The plea in that case was that the counsel was directed not to compromise the case. Thus, again the issue of fraud and misrepresentation was indirectly pleaded in that case. Therefore, the above referred decision is also not applicable to the facts of the case on hand. Now it has to be seen whether the judgments and awards are instruments within the meaning of Sections 31 and 39 of the Specific Relief Act? Whether a written instrument is void or voidable, any person apprehending that the said instrument may cause him serious injury may sue to have it adjudged void or voidable. Section 31 of the Specific Relief Act is as follows. “31. When cancellation may be ordered: (1) Any person against whom a written instrument if void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.” According to the learned counsel for the respondents, a judgment of a Court cannot be treated as an instrument within the meaning of Section 31 of the Specific Relief Act. In support of his contention, he has relied on a decision reported in Dunia Lal Datta v. Nagendra Nath Datta (3 supra). A judgment and decree passed by the Court was sought to be declared as inoperative and not binding on the plaintiff in that case. The question that came up for consideration is whether an award or judgment of Court is not a written instrument within the meaning of Section 39 of the Specific Relief Act, and after referring to certain decisions it was observed that an award or a judgment of Court cannot be treated as a written instrument within the meaning of Section 39 of the Specific Relief Act. He has also relied on the judgment in Pratabmull Rameshwar v. K.C. Sethia (2 supra). In that case a suit was filed seeking declaration that certain jute contracts and the relative arbitration agreements contained therein are void and unenforceable, that the awards made thereupon are void and unenforceable. It was argued that Section 39 of the Specific Relief Act deals with cancellation of written instrument where the contract is void. It was held that an award or a judgment of Court is not in the sense a written instrument within the meaning of Section 39 of the Specific Relief Act. It was further observed as follows. “We are inclined to think that Section 39 of the Specific Relief Act cannot be applied to the cases of judgments of a court or an award of a Tribunal although they may come within the general expression “Written Instrument”. We consider that the expression “written instrument” in Section 39 mentions an instrument which has not already been adjudged by any formal court or tribunal.” Thus, it appears that a judgment cannot be treated as a written instrument within the meaning of Section 31 or 39 of the Specific Relief Act. Learned counsel for the respondents has further submitted that much water has flown after passing the compromise decree in O.S. No. 81 of 2003 and that the first respondent herein filed E.P. No.22 of 2005 for realisation of the amount in pursuance of the decree in the said suit and that the appellant herein had taken all these pleas in the said EP and that the learned Judge, Family Court, by his order dated 11.l12.2006 passed in EP No. 22 of 2005, held that the appellant herein failed to prove that he pronounced divorce to the first respondent and that there is no specific clause in the compromise memo as to what is to be done in case if the appellant pronounced divorce to the first respondent and in the absence of any such clause, the claim of the appellant cannot be accepted. Learned counsel for the respondents has also brought to our notice that the appellant herein, in pursuance of the orders passed in the above said EP, had withdrawn 50% of his retirement benefits and 50% of the pension. The factum of withdrawing 50% of his retirement benefits and 50% of pension is not disputed. It is also his submission that having realized the fruits of the decree to the extent of his share, now the appellant cannot say that the decree is void or voidable. It appears that there is some force in the contention of the learned counsel for the respondents. It is also submitted that as per the terms of the compromise, no maintenance has been granted to the children of the appellant or to the first respondent, but the appellant agreed to pay an amount of Rs.2,000/- per month towards household monthly maintenance. Therefore, it cannot be said that since the sons of the appellant have become majors or his daughters are married, the first respondent does not require any amount towards household monthly maintenance. On careful perusal of entire record it appears that the appellant ought to have filed a suit seeking declaration that the first respondent is not his wife and that he is not obliged to act as per the terms of the decree in O.S. No. 81 of 2003 instead of seeking a declaration that the decree itself is void. Thus, the suit as framed appears to be not maintainable and the lower Court is justified in rejecting the same. In the light of the above discussion, we are not inclined to make any observations with regard to the plea of divorce put forth by the appellant herein and also with regard to applicability of judgment relied on by the learned counsel for the respondents in case between Danial Latifi and another v. Union of India[6]. We are of the view that there is no need to address those issues. Suffice to say that the averments made by the appellant himself do not show that the decree in O.S. No. 81 of 2003 was obtained by playing fraud, collusion or misrepresentation. In the circumstances, we are of the considered view that the Court below has rightly rejected the OP filed by the appellant herein and we see no reasons to interfere with the same. The appeal is devoid of merit and the same is accordingly dismissed. However, in the circumstances, no costs. ________________ N.V. RAMANA, J. ______________________ B. CHANDRA KUMAR, J. Date: 20th April, 2011 Nsr [1] AIR 1988 Rajasthan 22 [2] AIR 1960 Calcutta 702 [3] AIR 1982 Calcutta 163 [4] 2003 (2) ALD 728 [5] 2004(2) ALD 115(SC) [6] (2001) 7 Supreme Court Cases 740