IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1849 of 2005 Bibi Kulsum, daughter of Late Ali Muazam, resident of Mohalla Makdum Sarain, P.S. Siwan Town , District Siwan. ----------- Applicant/Petitioner Versus 1. Md. Husnain, son of late Ali Muazam, Resident of Balhua Bazar, P.S. Phulwaria, P.O. Bathua Bazar, District Gopalganj. --------Defendants/Opp. Party --------Opposite Party 1st Set 2. Bibi Khairul, daughter of Late Ali Muazam, Wife of Md. Isa, Resident of Bathua Bazar, P.S. Phulwaria, District Gopalganj. -------- Plaintiff/Applicant/Opp. Party For the Petitioner :- Mr. Yogendra Prasad Sinha, Adv. Mr. Suresh Prasad, Adv. For the O.Ps./Respondents :- Mr. S.S. Dwivedi, Sr. Adv. Mr. Rakesh Chandra, Adv. Mrs. Sangeeta Sharma, Adv. Mr. Ranjan Kumar Dubey, Adv. ----------- P R E S E N T THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kumar Jha, J. I.A. No. 5809 of 2009 For the reasons mentioned in this application, the payer made therein, is allowed and three persons, named in paragraph no.2 of such application, are directed to be impleaded as petitioners after deleting the name of the sole petitioner, who is said to have died on 7.8.2009 during pendency of this application. C.R. No. 1849 of 2005 Coming to the merits of this case, this Court would find that there is no flaw in the impugned order rejecting the case of the original 2 petitioner assailing the earlier compromise effected in the partition suit. 2. The facts, which are not in dispute and would be sufficient for disposal of this case, lie in a very narrow compass. A partition suit was filed being Title Suit No. 22 of 1981 by the original petitioner along with one Bibi Khairul Nisha on 28.1.1981. After service of summons on the defendant in the suit, an application was filed for amendment in the plaint by way of deleting the name of the plaintiff no.2 Bibi Khairul Nisha on the ground that she had, in fact, no interest in the suit property and the rest of the parties had already entered into compromise. Such an application filed on 25.5.1981 giving inkling to the said compromise also penned down on 25.5.1981, whereafter, the said compromise petition on being pressed had led to disposal of the suit by way of compromise decree by an order dated 3.6.1981. 3. Subsequently, an application was filed for setting aside the aforementioned compromise decree on the ground of fraud practiced by the opposite party no.1. Such an application filed by the original petitioner and Bibi Khairul Nisha, 3 Misc. Case No. 5 of 2002 was registered, whereof, in the light of the respective stand taken by the parties in their pleadings, evidence both oral and documentary were also adduced and ultimately the court below after taking into account all such materials had found that the allegation of their being forgery and/or fraud in the alleged compromise petition was unsustainable and accordingly, the miscellaneous case was dismissed. It is against the said order of the court below that the present civil revision application has been filed. 4. Mr. Yogendra Prasad Sinha, learned counsel for the petitioner, would submit that it will be imprudent to believe that when the two plaintiffs had claimed 7/16 and 7/16 share in the partition suit consisting of 64 bighas of agricultural land, they could have agreed for a share as set out in the compromise petition confined to only five bighas of land and that too which were under Sikmidars. He has further submitted that the entire story of compromise is brain work of the brother of the original petitioner, the defendant opposite party no.1, who had been initially instrumental in setting up the 4 two sisters to file the partition suit and, thereafter, also hatched a conspiracy in getting it compromised without their consent and in fact to their detriment. In this context, he has also referred to oral evidence led by the parties for impressing upon this Court that the two rustic ladies, who were originally the plaintiffs, had been made victim of a sinister design under a well hatched conspiracy of their brother, who had first conveniently elbowed out the plaintiff no.2 Bibi Khairun Nisha by seeking deletion of her name on the ground that she had no interest in the suit property and, thereafter, getting the compromise effected by using the thumb impression obtained on the blank paper from the original petitioner. 5. Per contra, Mr. Dwivedi, learned senior counsel for the opposite party no.1, has submitted that the scope of judicial review in a case of the present nature is very much limited, inasmuch as, it is only the procedural aspect, which can be gone into by this Court within the limited parameters of Section 115 of the Code of Civil Procedure. He has further submitted that it was a consistent case of the original petitioner before the court below that the forgery by 5 creating thumb impression was committed for practicing fraud in the compromise petition, and therefore, the test for finding out such forgery could have been only obtaining opinion of handwriting expert, which also went in favour of the opposite party no.1 holding that the disputed thumb impression of the original petitioner as also Bibi Khairul Nisha had fully tallied with the disputed thumb impression on the application dated 25.5.1981 seeking withdrawal of Bibi Khairul Nisha from the suit and/or the thumb impression of the original petitioner in the compromise petition dated 25.5.1981. Mr. Dwivedi, in fact, had also gone to submit that once it was found by the court below that Bibi Khairul Nisha being made aware of such compromise petition and the resultant compromise decree in the year 1987 in a proceeding under Section 144 of the Code of Civil Procedure, he had filed a separate application for setting aside the compromise decree and the resultant miscellaneous case was also dismissed, even for default, the knowledge already having been acquired by the Bibi Khairul Nisha would by itself make the miscellaneous case filed by the original petitioner along with Bibi Khairul Nisha barred by 6 limitation. 6. In the opinion of this Court, the issue of limitation has been rightly decided by the court below, inasmuch as, there is no difficulty in coming to such conclusion that the original petitioner Bibi Kulsum had not filed such an application in the year 1987. The issue, however, will not be confined to the filing of such application by a person claiming that such compromise decree passed on compromise petition was virtually obtained. In the present case, from reading of the application in the miscellaneous case filed by the original petitioner, it is absolutely clear that a specific case was made out of a compromise petition containing forged thumb impression and that is how even an application was filed on their behalf on 24.3.2003, wherein, a prayer was made for getting the thumb impression on the alleged compromise petition compared with her admitted thumb impression. That application however was not pressed by the original petitioner and subsequently, the defendant opposite party no.1 had made such a prayer for obtaining the opinion of handwriting expert by way of evidence by comparing of thumb impression, which was 7 initially rejected by the court below by an order dated 10.7.2004, whereafter, he had filed a civil revision application, C.R. No. 893 of 2004. This Court in the order dated 27.11.2004 had in fact found that comparison of the dispute thumb impression of the original petitioner of this case with her admitted thumb impression was absolutely necessary to decide the main question involved in the miscellaneous case and accordingly, while setting aside the order of the court below dated 10.7.2004, it was held by this Court as follows:- “----------Notice was issued to the opposite party and it was also served upon them but they did not choose to appear before the Court. In the circumstances, the Court has no option but to decide the case on the basis of material available on the record. Obviously the opposite party no.1 initially filed a petition for comparison of the disputed thumb impression but the same was not pressed. The evidence was taken up in the Misc. case and evidence of both the parties was closed. The petitioner filed a petition for comparison of the disputed thumb impression which has been rejected saying that it is belted one. It is evident from the material on record that the specific case of the opposite party is that the thumb impression of opposite party no.1 has been forged on the compromise petition and a compromise decree has been obtained fraudulently. In such a situation, the comparison/examination of the disputed thumb 8 impression on the compromise petition with the admitted one is necessary for coming to the right conclusion. Thus, for the ends of justice this revision petition is allowed. The order impugned, so far as it relates to the rejection of the petition for examination/comparison of the signature is hereby set aside.” 7. It thus becomes clear that the opinion of the handwriting expert, in fact, was obtained under the specific direction of this Court, which had held it absolutely necessary to meet the end of justice. In fact, it is not in dispute that after the said order of this Court that the photographs of the admitted thumb impression of the original petitioner and that of Bibi Khairul Nisha were obtained in presence of the counsel for both the parties as is reflected in the order dated 5.1.2005, whereafter, the handwriting exert had submitted his report on 31.1.2005 in which he was of the conclusive opinion that the thumb impression was that of the same person i.e. the original petitioner and Bibi Khairul Nisha. 8. It has to be kept in mind that the photographer as also handwriting expert were also examined in course of proceeding in the miscellaneous case and the court below, 9 thereafter, on the basis of the materials on record, had held that there was nothing to establish that there was forgery in the compromise petition. 9. In the opinion of this Court, when an issue of the present nature would arise in which a compromise decree will be questioned on account of forgery in the compromise petition, the oral evidence apart, the documentary evidence specially the report of handwriting expert and his evidence proving the same will have to be given due importance. The proven report of the handwriting expert in his oral evidence, therefore, would lean the issue in favour of the defendant opposite party no.2, inasmuch as, the said question in a way had also been earlier raised to question the judicial proceedings of the court and there if the court had a reasonable ground to hold that the signature or the thumb impression on the compromise petition was of the same person who had put them in support of the contents of the compromise petition, there would be little left for him for also going into the correctness of the terms and condition of such compromise. 10. Under such circumstances, the 10 examination of aspect as to whether the parties could agree to a compromise on a particular aspect, in fact, cannot be made scope of a proceeding when a compromise decree is sought to be assailed. Of course, there may be cases where such compromise may be against either a public policy or shaking the conscience of the court but otherwise under normal circumstances, the unreasonableness of the terms and conditions of the compromise by itself cannot be made a ground for setting aside the compromise decree. The Apex Court in the case of Byram Pestonji Gariwala Vs. Union Bank of India & Ors. reported in 1992 (1) SCC 31 has held that a compromise decree if not vitiated by fraud, misrepresentation, misunderstanding or mistake is binding and operates as res judicata as also estoppel between the parties. It is, however, apparent from the petition filed by the petitioner seeking to set aside the compromise decree that her case was confined to forgery of her thumb impression on the compromise petition which in the light of opinion and evidence of handwriting expert was found to be wholly untenable. Thus the terms of such compromise cannot be made now the ground for 11 setting aside the compromise decree. Viewed from all these angles, this Court would find no error in the impugned order. 11. That being so, this application is wholly misconceived and the same is accordingly dismissed. Patna High Court Dated 9th December, 2010 A.F.R./Rishi (Mihir Kumar Jha, J.)