Saturday, 29 August 2015

Whether compromise petition should be on affidavit?

Order 6, Rule 15 (1) of C.P.C stipulates that every pleading shall be
varied at the foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the Court to be acquainted with the facts of
the case. Sub Rule (4) was inserted to Order 6, Rule 15 of C.P.C by Act No.46 of
1999 w.e.f. 01.7.2002 which stipulates that the person verifying the pleading shall
also furnish an affidavit in support of his pleadings.
14. However, the court below accepting the compromise petition decreed
the suit on the terms and conditions of the said compromise. Though the said
application was defective due to non compliance of the aforesaid provision the
said fact was not taken note of. On the above back ground the court below has not
considered whether fraud has been practised or not taking into consideration the
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provisions as discussed. It further reveals from the L.C.R. that the order sheet in
which the compromise was recorded is a plain paper one without assigning any
reason why printed form of order sheet was not appended thereto. The court
below while considering the application under Order 23, Rule 3-A of C.P.C should
have also taken note of all these facts.
ORISSA HIGH COURT : CUTTACK
W.P.(C) NO.6535 OF 2011
(In the matter of an application under Articles 226 and 227 of the Constitution of
India)

Barendra Biswal ……… Petitioner
-Vs-
Rama Roy @ Das and another ……… Opp. Parties

P R E S E N T :
THE HONOURABLE KUMARI JUSTICE S.PANDA
Date of Judgment : 25.03.2015
Citation; AIR 2015 orissa 125

S.Panda, J. This Writ Petition has been filed by the petitioner challenging the
judgment dated 28.12.2010 passed by the learned Civil Judge (Senior Division),
Balasaore in C.M.A No.209 of 2008-I arising out of C.S No.238 of 2004-I rejecting
an application filed under Order 23, Rule 3-A of C.P.C to set aside the consent
judgment and decree dated 11.5.2004 and 15.5.2004 respectively passed in the
suit.
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2. The brief facts of the case are that opposite party no.1 as plaintiff filed
C.S No.238 of 2004-I before the learned Civil Judge (Senior Division), Balasore for
declaration of right, title, interest and to declare that Registered Sale Deed
No.8926 dated 29.12.2003 is illegal and inoperative. In the plaint it was pleaded
that though the petitioner-defendant promised to pay the consideration amount of
Rs.7,23,215/- to the plaintiff immediately after 15 days of the registration of Sale
Deed, he avoided to pay the same. The possession of the suit land has not been
delivered and the original sale deed was to be handed over to the defendant after
full payment of the total consideration amount.
3. Though the suit was posted for office note on 01.5.2004, the same
was put up in advance on 16.4.2004 on which date the suit was admitted and
notice was issued to the defendant fixing the date of appearance on 01.7.2004.
However, on 11.05.2004 the matter was put up on the basis of advance petition.
An Advocate purportedly appeared on behalf of the petitioner and compromise
was recorded by the court below on the basis of a compromise petition filed by
both the parties. A decree to that effect was also passed on 16.5.2004.
4. On verification of record, the petitioner found that the said
compromise decree had been obtained by misutilising the paper entrusted by him
to opposite party no.2 who is a close neighbour of the petitioner. The petitioner
was serving at Saudi Arabia in the year 2003 and he came to his native place in
October, 2003. Opposite party no.2 gave a proposal to the petitioner to purchase
a land situated adjacent to the Bank Petrol Pump at Station Square, Balasore for a
consideration of Rs.7,23,215/-. The petitioner accepted the said proposal and also
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obtained a certified copy of the R.O.R, Non-encumbrance Certificate for 13 years
and confirmed that it was not transferred earlier. He purchased the non-judicial
stamp paper ‘FRANK’ for an amount of Rs.72,330/- in the name of opposite
party no.1. A sale deed was drafted and submitted before the District Sub-
Registrar, Balasore on 29.12.2003. The petitioner also paid the registration fee of
Rs.14,525/-. Prior to the execution of the sale deed, a Savings Bank Account was
opened in the Indian Overseas Bank, Somnathpur Branch in the name of opposite
party No.1. The petitioner deposited Rs.5,00.000/- on 26.12.2003 and paid the
rest consideration amount of Rs.2,23,215/- to opposite party No.1 at the time of
execution of the sale deed, i.e., on 29.12.2003. Possession was delivered to the
petitioner. The petitioner also obtained the original sale deed from the Sub-
Registrar Office, Balasore on 12.1.2004.
5. While matter stood thus, opposite party no.2 proposed the petitioner
to hand over all the documents including the original sale deed dated 29.12.2003
along with the written and unwritten signed papers to him so that he will take steps
to mutate the land in the name of the petitioner. The petitioner had no occasion to
disagree to the said proposal and he handed over all the documents, sale deed,
written and unwritten papers along with Vakalatnama to opposite party no.2 in
presence of opposite party no.1 keeping Xerox copies of the same with him. He
paid Rs.25,000/- towards the expenses of mutation case. Thereafter, the
petitioner left Balasore in the 1st week of April, 2004.
6. The petitioner came to Balasore and was shocked to notice that the
sale deed dated 29.12.2003 in respect of the suit land had already been cancelled
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by virtue of a decree passed by the learned Civil Judge, (Senior Division),
Balasore in C.S. No.238 of 2004 on the basis of compromise arrived at between
the parties out of the Court. After enquiring about the said fact, the petitioner found
that the compromise decree was obtained by misutilising the papers entrusted by
him to opposite party no.2. Therefore, the petitioner moved this Court in F.A. O.
No.86 of 2005 against opposite party nos.1 and 2 challenging the collusive
judgment and decree dated 11.5.2004 and 15.5.2004 respectively. This Court
granted interim order of injunction and directed opposite party nos.1 and 2 not to
change the nature and character of the suit land. The FAO was disposed of with a
liberty to the petitioner that in case he files a proper application under Section 151
CPC before the trial court, the same shall be disposed of as early as possible,
preferably within a period of six months from the date of filing of such application
to recall the compromise decree and the name of opposite party no.2 was deleted
from the F.A.O as he was not a party to the suit and liberty was also given to the
petitioner that if so advised, he may implead opposite party no.2 as a party before
the trial court.
7. Accordingly, the petitioner filed C.M.A No.209 of 2008 before the trial
court along with an application to implead opposite party no.2 as a party to the
proceeding. However, the said application was rejected by the court below by
order dated 19.7.2008 against which the petitioner filed W.P.(C) No.10862 of 2008
before this Court, which was allowed by judgment dated 22.10.2008.
8. The petitioner filed an application before the court below under Order
23, Rule 3-A of C.P.C to set aside the consent judgment and decree dated
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11.5.2004 and 15.5.2004 respectively passed in the suit, which was registered as
C.M.A No.209 of 2008-I. In the said application it was stated that the decree was
obtained fraudulently and the compromise effected was totally unlawful. The
petitioner had paid the consideration amount in full to opposite party no.1 prior to
execution of the sale deed through cheque and opposite party no.1 withdrew some
amount from the Bank. Therefore the petitioner became the absolute owner in
possession of the suit land after taking delivery of possession on 29.12.2003 and
the title never passed to opposite party no.1 by virtue of any such compromise and
at the instance of opposite party no.2 such fraud has been committed by opposite
party no.1. Opposite party no.1 filed her show cause stating that the petitioner has
signed the compromise being aware of the contents of the same and it was never
effected behind his back. The petitioner was very well present in court and no
fraud was committed. The petitioner himself admitted to have not paid any such
consideration and he appeared through his own advocate. Opposite party no.2
also filed his objection to the said application stating that he is neither necessary
party nor proper party. The petitioner without paying any consideration wanted to
grab the property and opposite party no.1 transferred a portion of the suit property
to him to the knowledge of the petitioner.
9. The court below after hearing the parties by the impugned judgment
rejected the application with a finding that compromise decree drawn was partly
lawful and it was unlawful so far as declaration of title of plaintiff is concerned.
10. Learned counsel appearing for the petitioner submitted that as per the
terms and conditions of the compromise petition, the defendant had not only
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admitted the title of the plaintiff over the suit land but also admitted the plaint
allegations about non payment of the consideration amount and has agreed for
cancellation of the registered sale deed in question declaring the same as illegal
and inoperative. The judgment and decree is an outcome of fraud committed not
only on the party but also on court. Hence the impugned judgment need be
interfered with. In support of his contention he has relied on the decision in the
case of Santosh Vs. Jagat Ram and another reported in 109 (2010) CLT 543
(SC) wherein the Apex Court held that the decree as a result of fraud is nothing
but a nullity.
11. Learned counsel appearing for opposite party no.1 submitted that the
compromise decree was prepared in the presence of the petitioner and the
contents of the same were read over and explained to him by his advocate
therefore the plea of fraud and illegality taken by the petitioner cannot be
accepted.
12. Learned counsel appearing for opposite party no.2 submitted that the
petitioner without paying any consideration wanted to grab the property. He further
submitted that opposite party no.1 transferred a portion of the suit property to
opposite party no.2 to the knowledge of the petitioner. He also submitted that the
compromise was lawful and no fraud was committed.
13. In view of the contentions raised by the learned counsel for the parties
and after going through the materials available on record, it reveals that the
application filed for compromise was not in accordance with the following statutory
provisions. Rule 16 of General Rules and Circular Orders of the High Court of
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Judicature, Orissa (Civil) Volume-I stipulates that when a person presenting a
pleading, affidavit, petition or application is not an Advocate, a Pleader or a
Mukhtar, he shall, if so required by the Court, be identified. In the case of an
illiterate person his thumb impression shall be affixed in place of the signature
required in this connection. Further Rule 485 stipulates that no Court shall accept
admission of a compromise by a Pleader/ Advocate or record a compromise filed
by a Pleader or Advocate in a pending case, unless a special Vakalatnama is filed
by such Pleader or Advocate for the said purpose. In the present case the so
called compromise was entered into between the parties and the terms and
conditions of the said compromise was explained to the parties. They having
understood the same put their signature in the compromise petition without
identification and affidavit.
13.1 Order 6, Rule 15 (1) of C.P.C stipulates that every pleading shall be
varied at the foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the Court to be acquainted with the facts of
the case. Sub Rule (4) was inserted to Order 6, Rule 15 of C.P.C by Act No.46 of
1999 w.e.f. 01.7.2002 which stipulates that the person verifying the pleading shall
also furnish an affidavit in support of his pleadings.
14. However, the court below accepting the compromise petition decreed
the suit on the terms and conditions of the said compromise. Though the said
application was defective due to non compliance of the aforesaid provision the
said fact was not taken note of. On the above back ground the court below has not
considered whether fraud has been practised or not taking into consideration the
8
provisions as discussed. It further reveals from the L.C.R. that the order sheet in
which the compromise was recorded is a plain paper one without assigning any
reason why printed form of order sheet was not appended thereto. The court
below while considering the application under Order 23, Rule 3-A of C.P.C should
have also taken note of all these facts.
15. Considering the above, this Court while setting aside the impugned
judgment dated 28.12.2010 passed by the learned Civil Judge (Senior Division),
Balasaore in C.M.A No.209 of 2008-I arising out of C.S No.238 of 2004-I, remits
the matter back to the court below for fresh disposal in accordance with law.
The Writ Petition is accordingly disposed of.
………….……….
S.Panda, J.
Orissa High Court, Cuttack
25th March, 2015/ B.K.Panda
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