C.R. No.467 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.467 of 2009 Date of decision:- 28.01.2009. Kuldip Kaur ...Petitioner Versus Smt. Surjit Kaur ...Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present:- Mr. Ajit Pal Singh Guliani, Advocate for the petitioner. JASWANT SINGH J.(Oral) The present revision petition has been filed under Article 227 of the Constitution of India for seeking directions to the learned Additional District Judge, Jalandhar to dispose of the application under Order 12 Rule 6 of the Code of Civil Procedure, filed by the present petitioner. The facts in brief as pleaded by the petitioner are as under:- Respondent-Smt. Surjit Kaur is the owner of a house constructed on land measuring 1 Kanal 6 Marla situated in Village Bhogpur, Tehsil and District Jalandhar and she entered into an agreement to sell the above house in favour of the petitioner on 22.11.1995 for a sale consideration of Rs.3,00,000/-. The sale could not be fructified on the stipulated date i.e. 21.11.1995 and that resulted into the filing of a suit for specific performance. The suit filed by the plaintiff-petitioner Kuldip Kaur was dismissed vide judgment and decree dated 16.10.2007 by learned Civil Judge (Senior Division), Jalandhar. Aggrieved against the judgment and decree, referred above, the plaintiff-petitioner filed an appeal, which is now C.R. No.467 of 2009 -2- pending before the learned Additional District Judge, Jalandhar. It is further alleged by the petitioner that the respondent had entered into a compromise with the petitioner on 17.04.2006 and on the basis of that application under Order 12 Rule 6 of the Code of Civil Procedure was filed before the learned Civil Judge (Senior Division), Jalandhar, but the same was neither relied upon nor referred to by the learned Civil Judge (Senior Division), Jalandhar while dismissing the suit on 16.10.2007 despite the fact that compromise dated 17.04.2006 was duly exhibited as Ex.D-3 by the defendant-Surjit Kaur. Consequently, another application under Order 12 Rule 6 of the Code of Civil Procedure was filed by the petitioner-plaintiff before the learned Appellate Court on 17.03.2008 but the matter is being adjourned from time to time and to substantiate his contention, the petitioner has reproduced the zimni order in paragraph 5 of the present revision petition. The prayer in the present revision petition is to issue a direction to the learned Appellate Court to dispose of the application under Order 12 Rule 6 of the Code of Civil Procedure, filed by the petitioner-Kuldip Kaur at the first instance without deciding the whole of the case/appeal on merits. The contention of the petitioner cannot be accepted for the reasons that her suit has already been dismissed after rejecting the said compromise dated 17.4.2006 (Exhibit D3) and that judgment and decree is under challenge. Therefore, no direction can be issued to the learned Appellate Court to dispose of the appeal in terms of the compromise or admissions between the parties on the issue as to whether Surjit Kaur- respondent-defendant had entered into an agreement dated 22.11.1995 in favour of petitioner-plaintiff Kuldip Kaur for selling the suit property. The C.R. No.467 of 2009 -3- petitioner-plaintiff never stepped into the witness box. Instead one Iqbal Singh (PW4) stating himself to be Attorney of respondent-defendant Surjit Kaur stated that there was a compromise between the petitioner-plaintiff- Kuldip Kaur and Surjit Kaur-defendant and accordingly a decree be passed in favour of petitioner-plaintiff-Kuldip Kaur. The learned trial Court in para 7 of the impugned judgment dated 16.10.2007, while rejecting the compromise Exhibit D3 held as under:- “It was incumbent upon the plaintiff to produce the witnesses in support of her claim but instead of this, she produced the power of attorney of defendant No.1 Iqbal Singh and it seems that this person Iqbal Singh is playing from both the sides. On one side, he is coming from the side of plaintiff and on the other side, he is coming from the side of defendant No.1. So it seems that as per the objection of other defendants, there is collusiveness between plaintiff and defendant No.1. They have placed on record one compromise which is neither exhibited nor proved. So no judicial notice can be taken regarding that. The ownership of defendant No.1 is also not proved. Defendant No.1 was not competent to execute any agreement to sell. Both the ladies have not come present in the court. It is a matter of law that plaintiff has to prove her case and it is not always that the admission of defendant can press the court to pass a Judgment on admission. Even if the plaint is admitted, even then the court has to see that whether the case is made out for the C.R. No.467 of 2009 -4- grant of relief or not. In the present case, I find that the person namely Iqbal Singh is playing fraud. On one side, he is acting on behalf of the plaintiff and on the other wise, he is admitting the case of plaintiff as attorney of defendant No.1. In these circumstances, I find that there is a content of fraud upon the court and upon the other defendants.” Keeping in view the fact that the learned trial Court while dismissing the suit has categorically held that defendant-Surjit Kaur is not owner of the suit property, no direction can be given to the Appellate Court to dispose of the application on the basis of the compromise Exhibit D3, at the first instance, without deciding the case on merits, in view of the judgment and decree dated 16.10.2007 passed by the learned trial Court. No ground is made out to interfere. Dismissed with no order as to costs. January 28, 2009 (JASWANT SINGH) vj JUDGE