Case: Sneh Gupta Vs. Devi Sarup

Section 7(1) of the 1952 Act read with Section 6 of the said Act, when brought to the notice of this Court, precluded the exercise of the power under Section 407 of the Code. There was no argument, no submission and no decision on this aspect at all. There was no prayer in the appeal which was pending 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 nullity. Four valuable rights, it appears to us, of the appellant have been taken away by the impugned directions: (i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament. (ii) The right of revision to the High Court under Section 9 of the Criminal Law Amendment Act. (iii) The right of first appeal to the High Court under the same section. (iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary. 55. We are concerned herein with a question of limitation. The compromise decree, as indicated hereinbefore, even if void was required to be set aside. A consent decree, as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. 56. In State of Rajasthan v. D.R. Laxmi [(1996) 4 SCC 445], this Court held: 10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances. It is seen that the acquisition has become final and not only possession had already been taken but reference was also sought for; the award of the Court under Section 26 enhancing the compensation was also accepted. The order of the appellate court had also become final. Under those circumstances, the acquisition proceedings having become final and the compensation determined also having become final, the High Court was highly unjustified in interfering with and in quashing the notification under Section 4(1) and declaration under Section 6. 57. Yet again, in M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470] , 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. 58. 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. 59. 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 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] ; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52] . 60.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Herein, we are not concerned with the effect of the earlier litigation. We are also not concerned with regard to the conduct of Smt. Veena Nirvanis the appellant and the other defendants and/or as to whether the litigation was being fought through the lawyers of the same chamber. Both the suits were compromised. Indisputably, the date fixed in the matter was July, 1998. The impugned compromise petition, however, was filed on 25.04.1998. For the aforementioned purpose, the date was preponed. Indisputably, the appellant was not informed thereabout. She was not given any notice of preponement of the date. The question as to whether the appellant knew thereabout or not is essentially a question of fact to which we would advert to a little later. It is, however, difficult for us to agree with the High Court as also the submissions of Mr. Dwivedi that the compromise was a comprehensive onelearned Additional District Judge, on the basis of the materials brought on record by the parties arrived at a finding of fact that the settlement was not a comprehensive one. He, furthermore, opined that none of the respondents appeared in the witness box to substantiate the terms and conditions of the compromise nor did they examine any other witness. The purported circumstances that Smt. Veena Nirwani was at the helm of the affairs in respect of both the matters sought to be emphasized before us being not based on any material on record, we are of the opinion that the finding of the High Court that a comprehensive settlement was arrived at must be held to be wholly incorrectHigh Court moreover was exercising its jurisdiction under Article 227 of the Constitution of India. While exercising the said jurisdiction, the High Court had a limited role to play. It is not the function of the High court while exercising its supervisory jurisdiction to enter into the disputed question of fact. It has not been found by the High Court that the findings arrived at by the learned Additional District Judge were perverse 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 ofg of the compromise petition by the appellant herein as also the respondent Nos. 4 to 8 hereinWe 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 anybodys 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 lawAppeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending before different courts and in that view of the matter it is difficult to agree with the High Court that only for that purpose, the date in the appeal was preponed. Even otherwise, in law, they are not members of the same family. They have been inherited definite share from their predecessorsThe question of estoppel and/or election as also the doctrine of approbate or reprobate, whereupon reliance has been placed, has exceptions, one of them being that there is no estoppel against statute37. Submission of the learned senior counsel that Veena and the appellant were in the same boat as would appear from the fact that they had engaged lawyers from the same chamber and, in fact, the lawyer of the appellant had no independent practice itself would go to show that she knew about both the compromise petitions cannot be accepted. A counsel appearing for a party is expected to be independent. There is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentiality or commit some act which would amount to professional misconduct. Only because two compromise petitions were filed on the same day or Veena was a party to both of them, in our opinion, would not by itself lead to any inference that appellant also knew about the second compromise through her counsel. We would, however, deal with the question of her acquiring knowledge thereof at appropriate stage38. Whether the preponement of the date was only at the instance of Veena or at the instance of both the parties to the consent is a matter which is of little relevance so far as this Court is concerned inasmuch as the only issue which would arise for our consideration is the consequences of such preponement. If the hearing of a case is preponed, it should be done with notice to all the parties. It is not the case of the first respondent that notice had been given to all the parties or otherwise also they were aware thereofMr. Jayant Bhushan would submit that the limitation would start to run from the date of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act is in two parts. In a case where summons have been served upon a party, the first part shall apply. However, in a case where the summons have not been served, the second part shall apply. In this case, summons were served upon the appellant. They knew about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in July 1998. The only question, which would, thus, arise for our consideration is the effect of the preponement of the dateIf the compromise has been accepted in absence of all the parties, the same would be void. But if the same having 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 thereafterEven 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 6.11.2004 in other enacted appeals. Those applications were also filed after expiry of the period of limitation and none of those applications were also accompanied with an application for condonation of delay. In absence of any application for condonation of delay, the Court had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar [(2003) 7 SCC 66] ; and Sayeda Akhtar v. Abdul Ahad [(2003) (7) SCC 52] .