RSA No.1770 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1770 of 2010(O & M) Date of Decision:07.05.2010 Sewa Ram ......appellant Versus Smt.Nirmala Devi & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Mahavir Sandhu,Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for declaration to the effect that she was joint owner in possession to the extent of 1/6th share in respect of the suit land along with all rights appurtenant thereto and further for declaration to the effect that the mutation No.333, sanctioned on the basis of decree dated 21.12.1983 was illegal and ineffective against the rights of the plaintiff and the same was liable to be set aside and the subsequent entries in the revenue record on the basis of the aforesaid alleged decree were illegal and liable to be corrected with consequential relief of permanent injunction restraining the respondents from alienating the suit property was decreed in terms of compromise Ex.CX. The brief facts out of which this appeal has arisen are that earlier one Lala Ram was owner in possession of the suit land. After his RSA No.1770 of 2010(O & M) 2 death, the suit land was inherited by the parties to the suit being his legal heirs and thus plaintiff-respondents as well as defendant-appellant became joint owners in possession of the same to the extent of 1/6th share each. It is the further case of the plaintiff-respondent that she came to know that mutation No.333 was sanctioned in the name of defendant Nos.1 and 2 on the basis of a decree dated 21.12.1983 in Civil Suit No.560 allegedly suffered by her in the court of then Additional Senior Sub Judge, Jagadhari. The aforesaid decree and mutation was not binding on her rights being the result of fraud and misrepresentation as she never appeared before the Additional Senior Sub-Judge nor she made any statement before the court and there was no occasion on her part to suffer any decree in favour of defendant Nos.1 and 2. The entries in the revenue record on the basis of the impugned decree and mutation were liable to be corrected in her name and the defendants were liable to be restrained from alienating the suit land in any manner. Thus, the necessity arose to file the present suit. Upon notice, defendant Nos.1 and 2 put in appearance through their counsel Sh.Gurnam Singh and Sh.Parmod Bansal, Advocates, respectively. Later on, i.e.03.01.2007, Sh.Parmod Bansal, Advocate filed joint power of attorney on behalf of defendant Nos.1 and 2. Plaintiff gave up defendant Nos. 3 to 5 being unnecessary. On that date, i.e.03.01.2007 the matter was settled between the parties and a written compromise was placed on the file and the case was adjourned to 10.02.2007 for recording the statement of the parties as defendant Nos.1 and 2 were not present. On 10.02.2007, plaintiff-respondent filed an application under Order 23 Rule 3 CPC for deciding the case on the basis of compromise whereas defendant No.1 filed an application for treating the alleged compromise dated 05.12.2006 as null and void and not binding on his rights. The parties filed reply to both these applications. In her RSA No.1770 of 2010(O & M) 3 application, the plaintiff-respondent had pleaded that on 03.01.2007, the parties had arrived at a compromise wherein defendant Nos.1 and 2 had admitted her to be the owner to the extent of 20/170 share out of the total suit land and they also agreed to make a statement regarding this compromise before the Court. A written compromise was also placed on the record of the file. Defendant Nos.1 and 2 also submitted the affidavits admitting the claim of the plaintiff-respondent which were also attached with the application. It was further alleged that the compromise as well as affidavits were written and attached in the presence of defendant Nos.1 and 2 who after verifying its contents as true and correct put their signatures thereon but they intentionally did not make the statement before the Court, as such prayer was made to decide the suit as per the compromise. In his reply, defendant No.1 pleaded that the alleged compromise dated 05.12.2006 was null and void as the same was never executed by him. The decree dated 21.12.1983 was valid. The agreement was an act of fraud and misrepresentation. The contents of the affidavit were not disclosed to him and the same were also the result of misrepresentation. With these allegations, dismissal of the application of the plaintiff with costs was prayed for. Anyhow, defendant No.2 in his reply to this application pleaded that he has no objection if the suit of the plaintiff was decided as per compromise dated 05.12.2006. In the meanwhile, defendant No.1 also filed his written statement on 18.05.2007 pleading that the decree suffered by the plaintiff- respondent on 21.12.1983 was legal and valid. Certain legal issues were raised to submit that there was no valid ground for challenging the impugned decree. Other allegations were also denied and dismissal of the suit was prayed. After hearing learned counsel for the parties and going through the case, the trial court came to the conclusion that the RSA No.1770 of 2010(O & M) 4 compromise dated 05.12.2006 Ex.CX was arrived at between the parties and the same was lawful. It was further concluded that though defendant No.1 had retracted from this compromise but he failed to explain as to how and under what circumstances he had put his signatures on this compromise and the affidavit besides the signature of his advocate as well as advocates of other parties. It was also held that plea of defendant No.1 that compromise was the result of fraud was not worthy of acceptance. Resultantly the suit was decreed in terms of compromise Ex.CX vide impugned judgment and decree dated 19.09.2008. Feeling aggrieved of the same, defendant No.1 filed an appeal before the Lower Appellate Court . Before the Lower Appellate Court, it was submitted by the appellant that the alleged compromise and the affidavit were the result of fraud and misrepresentation played upon him by the plaintiff. The said agreement was never acted upon being based on fraud and misrepresentation and was therefore challenged but the aforesaid issue was not decided by the trial Court so the appeal was liable to be accepted. It was further argued that the defendant could withdraw from the compromise as well as the statement made before dismissal of the suit as withdrawn. On the other hand, learned counsel for the respondent argued that the Lower Court after satisfying itself about the genuineness of the compromise Ex.CX had passed the impugned judgment and decree and defendant No.1 failed to spell out the particulars of fraud played upon him while obtaining his signatures on the said compromise and the affidavit sworn in by him and, therefore, the compromise being legal and valid was rightly accepted. In support of their contentions reliance was placed on the observations made in Bimal Kumar vs. Ram Kumar & Ors. 2008(1) Civil Court Cases 180 H.P. RSA No.1770 of 2010(O & M) 5 While dismissing the appeal, the Lower Appellate Court observed as under: “After hearing the arguments of both the sides and going through the case file, it is clear that the parties had arrived at a compromise Ex.CX on 05.12.2006 as the plaintiff has admitted his signatures on it as well affidavit in support thereto. According to this compromise, the plaintiff was given 20/170 share in total land measuring 170 kanals 7 marlas i.e.20 kanals though as per her claim in the suit, her share was 1/6th in this total land which comes to more than 28 kanals. So, this compromise can be said to be valid on this account because the plaintiff agreed to have lesser land than what she had claimed in the suit. This compromise cannot be said to be unlawful in any manner because it was arrived at between the parties after seeing the interest of both the parties. Vide this compromise, the suit was decided wholly between the parties. The compromise cannot be said to be void or voidable under the Indian Contract Act, 1872. So, it is proper and lawful within the provisions of the Order 23 Rule 3 CPC. The observations made by the Hon'ble Apex Court in Banwari Lal's case(Supra) are of no avail to the case of defendant No.1 because the learned lower court has passed the impugned judgment and decree after examining the legality of the compromise and genuineness of the signatures of the parties and their counsel. Had the defendant No.1 spelled out the ingredients of fraud in his reply to the application of plaintiff or in his own application for setting aside the compromise, RSA No.1770 of 2010(O & M) 6 then and only then, the question of proving the same would have arisen requiring the parties to lead their evidence. But that being not the position, it cannot be said that the compromise was based on fraud or misrepresentation exercised on him by the plaintiff. Similarly, the observations made in Mange Ram's case(supra) do not come to the aid of the defendant No.1 because in that case, the facts were different than those of the one in hand as there the plaintiff had made the statement for dismissal of the suit as withdrawn on the basis of the compromise but it is not clear that in that case the compromise was written and signed by the parties. So, it can be said that the said order was passed in view of the peculiar facts of that case. In Simarjit Kaur's case(supra) the compromise deed was executed on 09.07.1988 whereas the petition was filed thereafter i.e.on 11.08.1988. The said document was not signed by the counsel for the parties. But in the instant case, the compromise has been arrived at and signed by the parties as well as their counsel and attesting witness, namely, Ranbir Singh, Kamal Kant and Satpal during the pendency of the suit and not prior thereto. So, this authority also does not come to the rescue of the case of the defendant No.1. It is pertinent to mention here that when the Notary had attested the affidavits of defendant No.1 and 2, then the same can be said to be the authentic ones. In this regard, the reliance can be placed on the observations made by our own Hon'ble High Court in Banarsi Das @ Banarsi Lal vs.Maman Chand 1991 PLJ 785(P & H) wherein it has been held that the attestation made by the RSA No.1770 of 2010(O & M) 7 Notary, can be admitted into evidence without producing him as a witness in the case. So, the affidavit sworn in by defendant No.1 can also be accepted to be correct without examining the Notary.” Not satisfied with the aforesaid judgment and decrees of the courts below, appellant has approached this Court by filing the instant appeal submitting that the following substantial questions of law arise in this appeal: 1. Whether the evidence available on the record have been totally misread, misinterpreted and misconstrued by the courts below, which are very vital, important and significant to arrive at the just and proper decision of the case between the parties? 2. Whether the impugned judgments and decree passed by the courts below are illegal, bad, wrong, erroneous, null and void, contrary to the evidence on record oral as well as documentary, against the true facts and legal import of the case and thus liable to be set aside? 3. Whether the alleged compromise dated 05.12.2006 (Ex.CX) has never been entered and executed between the appellant-defendant No.1 and plaintiff and the same is null and void and therefore on the basis of impugned judgments and decrees passed by the court below are liable to be set aside and the decree dated 21.12.1983 passed in the previous civil suit bearing No.560 is perfectly legal, valid and lawful? 4. Whether the alleged compromise is not binding upon the rights of appellant because the same is an act of fraud and misrepresentation? RSA No.1770 of 2010(O & M) 8 5. Whether once the contents of the said agreement have not been disclosed and made understandable to the appellant and the counsel for the appellant-defendant No.1 was not party to the said agreement whereas the counsel for the other defendants and that of the plaintiff were signatory to the alleged agreement and therefore it cannot be said to be a lawful and valid agreement having been executed between the parties as per the provision of the Contract Act? 6. Whether an agreement alleged to have been arrived at between the parties to the lis out side the court, the court is legally bound to decide the lis on the basis thereof, particularly when one of the party clearly refused the execution thereof by appearing in the court and not accepted the contents thereof and that of the affidavit attached in support thereto, as the said contents have not been disclosed and made understandable to him and therefore is an act of fraud and misrepresentation? 7. Whether the present suit can be decided on the basis of alleged agreement although in the present suit a challenge has been made to the decree dated 21.12.1983 passed in civil suit No.560 titled Sewa Ram versus Smt.Nirmala Devi and others, which was alleged to be the result of fraud and misrepresentation and if that being so, the alleged agreement was required to be arrived at between the parties in the previous suit of 1983 and the said decree was required to be modified on the basis of the alleged agreement if admitted to be correct by the appellant and not the present suit. RSA No.1770 of 2010(O & M) 9 8. Whether if the alleged agreement was admitted to be correct by defendant No.2 then the suit qua him was liable to be decreed, on the basis thereof and against the appellant-defendant No.1 was liable to be decided on its merit as the said agreement was not admitted by him executed and to be true and correct and therefore was not binding upon his rights in the suit property? In support of his case, learned counsel for the appellant has vehemently argued that the courts below have committed an illegality while decreeing the suit of the plaintiff-respondent No.1 on the basis of the alleged compromise dated 05.12.2006(Ex.CX) which, in fact, was not actually arrived at between the parties and the same was an act of fraud and misrepresentation and, therefore, was liable to be set aside. It was further argued that as per the settled proposition of law, the agreement of compromise arrived at between the parties outside the court to settle and resolve the issues pending before the court if the execution, entrance and contents thereof not accepted and admitted to be true and correct then the court was not bound to decide the said controversy on the basis thereof and the said document cannot be treated a document having arrived at between the parties amicably and, thus, the judgment and decrees of the courts below were liable to be set aside. In support of his case, learned counsel for the appellant further relied upon a judgment of this Court in Mange Ram vs.Sube Singh & Others 2006(1) Civil Court Cases 688(P & H) to contend that the appellant was competent to withdraw from the alleged compromise reached between the parties. I have heard learned counsel for the appellant and perused RSA No.1770 of 2010(O & M) 10 the impugned judgment and decrees of the courts below. From the facts as narrated above, one thing is clear that the parties had arrived at a compromise vide Ex.CX on 05.12.2006. According to this compromise, the plaintiff-respondent was given 20/170 share in the total suit land measuring 170 kanals 7 marlas. This compromise cannot be said to be unlawful in any manner because it was arrived at between the parties after considering the interest of both the parties. Vide this compromise, the suit was decided wholly between the parties. Thus, the same cannot be said to be void or voidable under the Indian Contract Act, 1872. So, it was proper and lawful within the provisions of Order 23 Rule 3 CPC and the courts below have passed the impugned judgment and decrees after examining the legality of the compromise and genuineness of the signatures of the parties and their counsel. It may also be noticed that appellant has not spelled out any ingredient of fraud in his application for setting aside the compromise and, therefore, it cannot be said that the compromise based on fraud and misrepresentation exercised on the appellant by the plaintiff. Similarly, the judgment relied upon by the counsel for the appellant is of no help to him as the facts of that case were different than those of the one in hand. In the instant case, the compromise has been arrived at and signed by the parties as well as their counsel and attesting witnesses namely Ranbir Singh, Kamal Kant and Satpal during the pendency of the suit and not prior thereto. Thus, in view of the aforesaid overwhelming evidence on record, it could not be demonstrated by the appellant that judgment and decrees of the courts below are erroneous. The impugned judgment and decrees have been passed on the basis of the compromise Ex.CX after testing the genuineness and legality of the same. Thus, I find no merit in this appeal. RSA No.1770 of 2010(O & M) 11 No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 07.05.2010 neenu