Dinanath Sah v. Ganesh Prasad & Ors.

Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 placed at Annexure-1 of the application. While the suit was pending adjudication a compromise is stated to have been filed on behalf of the contesting parties and the learned trial Court in consideration of the circumstances, referred the matter to the Lok Adalat under the provisions, of the Legal Services Authority Act, 1987 (hereinafter referred to as the ‘Act’). The Lok Adalat by an order passed on 30.6.2005 (Annexure-3) upon hearing the parties recorded a compromise which is stated to have been signed by the parties. Upon return, the trial Court i.e. the learned Sub Judge-I passed a compromise decree on 30.6.2005 in the light of the award of the Lok Adalat and a copy whereof is placed at Annexure-4 to the application. The pleadings made in this application manifest that the petitioner had sold a part of the suit property on 16.6.2008 in favour of the tenant who alleged that threats was being given by the defendant-opposite party relying upon a compromise decree. The petitioner got the records examined on 8.7.2008 and after obtaining a copy of the compromise decree on 11.7.2008 became aware of forgery and whereafter the miscellaneous case was filed on 15.7.2008. The miscellaneous case was rejected by the order impugned and hence the present application. Mr. Giri, learned counsel appearing for the petitioner even 3 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 while admitting the signatures appearing on the plaint, the Vakalatnama and the compromise petition filed before the trial Court, submits that the said signature had been obtained by the opposite parties on blank sheets and were misutilised for this purpose and is an act of fraud. With reference to the statement made in the miscellaneous application questioning the decree on the anvil of fraud, it was submitted that the schedule property included even such property which was the self acquired property of the plaintiff and which substantiated the fraud committed by the opposite parties. It is submitted that contention of the petitioner stands substantiated by the award passed by the Lok Adalat which does not bear the signature of the petitioner rather the son of the defendant Ramesh Prasad namely, Kuber Prasad has signed on his behalf. It is contended that if the compromise would have been recorded with the consent of the petitioner, the award would have contained either his signature or the signature of his counsel. It is stated that issues of fraud having been raised by the petitioner through the miscellaneous case in question, have been mechanically rejected by the trial Court simply on grounds that since the award was passed by the Lok Adalat under the provisions of the Act, it is unquestionable before any Court. 4 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 Mr. Giri in support of his submission that every Court/Tribunal has inherent power to recall such order which has been obtained by practicing fraud, has relied upon the following judgments. (1) AIR 2000 SC 1165 paragraphs 4,16 and 17 (United India Insurance Co. Ltd. v. Rajendra Singh and others) (2) (2006) 7 SCC 416 paragraph 15, 25 and 28 (Hamza Haji Vs. State of Kerala and Anr.) The arguments of Mr. Giri has been contested by Mr. Singh, learned counsel appearing for the opposite parties. Mr. Singh, with reference to the Lower Court Records which has been summoned on the order of this Court as well as with reference to the documents which formed part of the records submits that there are sufficient evidence on record to reject the contention of the petitioner that the compromise is based upon fraud practiced by these opposite parties. It is submitted that the very admission of the petitioner to his signature as available on the plaint as well as on compromise filed in the trial Court as also on his deposition, completely vindicates the stand of the opposite party that the compromise decree suffers from no infirmity. Mr. Singh, has further sought to canvass that the petitioner 5 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 having recourse the criminal proceeding, miscellaneous case itself was not maintainable until such time that the charge of fraud was upheld by the criminal court and which finding would have precedence over a civil proceeding. Mr. Singh in support of his submission has relied upon a judgment of the Supreme Court reported in AIR 1954 SC 397 (M.S. Sheriff and Anr. Versus State of Madras). Supporting the order impugned Mr. Singh has submitted that the Legal Services Authority Act is a complete code and any order passed by the Lok Adalat in exercise of power vested under Section 20 of the Act is unquestionable before any Court in appeal in view of the provisions underlying Section 21(2) of the Act. It is further submitted that a plain reading of the miscellaneous case would show that the relevant particulars establishing a charge of fraud are conspicuously missing in the present case and even if the statement is taken on its own face value though not admitted, yet those are not sufficient to render the decree bad in law. Mr. Singh, has further submitted that the compromise decree was recorded on 30.6.2005 and although the parties litigating come from a common ancestor, it has taken no less than three years for the plaintiff to realize that the compromise decree is fraught with fraud. It is further submitted that the miscellaneous 6 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 case itself was hopelessly barred by limitation. Mr. Singh concluding his arguments has submitted that in view of the uncontroverted position where the signature of the plaintiff appears on the plaint, the compromise petition and the deposition made before the trial Court before the matter was sent to the Lok Adalat for recording a compromise, a mere irregularity of the petitioner not signing on the award would not salvage the situation for the petitioner for questioning the award. I have heard learned counsel for the parties and have perused the materials on record. Two issues which arise for consideration before this Court are; (i) whether the petitioner has any jurisdiction to question the award on the anvil of fraud more particularly in the circumstance where his signatures appear on the plaint, the compromise petition and his deposition on the compromise, before the trial Court and (ii) whether the award of the Lok Adalat in view of the provisions of Section 21(2) of the Act is unassailable. In so far as the question of maintainability of miscellaneous case preferred by the petitioner who himself is a plaintiff before the Court below is concerned, it is by now well settled that a party to a compromise cannot question the compromise decree except by way of a miscellaneous case before the Court which passed the 7 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 decree or by way of an appeal. Reference this regard is made the following judgments:- (I) (1993) 1 SCC 581 (Banwari Lal versus Chando Devi) (II) 2006(3) PLJR345 (Guru Charan Singh & Ors. Vs. Mahantam Singh & Anr.) (III) 2010(1) PLJR 560 (Smt.Prabhawati Singh Vs. Heera Rai) (IV) 2012(1) PLJR 437 (Satyendra Kumar @ Rajeev Ranjan & Ors. Versus Most. Shakuntala Kumari) (V) 2012(4) PLJR 1051 (Ashok Kumar Pandey Vs. Rajesh Kumar Sinha & Ors.) Thus even where the signature of the petitioner as a plaintiff is said to be occurring on the plaint, the compromise and his deposition on the compromise before the trial Court, the petitioner was well within his jurisdiction to question the compromise decree by filing a miscellaneous case in order to establish that the compromise decree is a fraud practiced by the other parties to the compromise. That brings us to the second issue and that is whether the award passed by the Lok Adalat under the provisions of Section 8 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 21(1) of the Act is unassailable before the trial court as held by the Court below in the order impugned. Nodoubt, an award passed by a Lok Adalat in terms of the Act is a decree and is not appealable but just as a compromise decree can be questioned by a party to a compromise under the proviso to Order 23 Rule 3 of the Code read with Section 151 thereof before the Court which passed the decree on grounds of fraud, even the awards passed by the Lok Adalat can be questioned on the anvil of fraud before the Civil Court by way of a suit or a miscellaneous case; as the case may be. Since in the present case, the compromise was filed before the trial Court and was referred to the Lok Adalat and after the Award of the Lok Adalat, the trial Court has passed a compromise decree in the light of the award, the petitioner very rightly filed the miscellaneous case in question under the proviso to O 23 r 3 read with Section 151 of the Code. This issue is no more res integra in view of the Division Bench pronouncement of this Court rendered in C.W.J.C. No. 14426 of 2009 (Meena Choudhary versus Dilip Choudhary) which was noticed and followed in a judgment reported in 2002(2) PLJR 184. The next aspect which draws the attention of this Court is regarding the abdication of jurisdiction by the trial Court in the 9 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 matter. The first abdication has taken place when the compromise was filed before the trial Court. It is incomprehensible why the trial Court did not proceed to record a compromise in accordance with law and rather deemed it proper to refer the matter to the Lok Adalat even when there was no such request by any of the parties to the compromise. The second instance of abdication is the order impugned. The moment a party questions a compromise decree on the anvil of fraud, it is the bounden duty of the Court passing a compromise decree to make an enquiry into the application and afford all the opportunity to the party complaining, to establish the fraud. Reference in this regard is made to a judgment of the Supreme Court reported in 2009(4)PLJR SC 237( Devi Prasad and Ors. Vs. Vishwa Nath Prasad & Ors.). What is the nature of the enquiry has been discussed in a judgment of this Court reported in 2013 (1)PLJR 806 (Urmila Devi Vs. Ashok Prasad & Ors.). Nodoubt, a number of issues have been raised by the plaintiff-petitioner as well as the defendants-opposite parties and which required an answer in the order of the trial Court but is grossly missing in this case rather the trial Court has without application of mind dismissed the miscellaneous case simply taking refuge under the provisions of Section 21(2) of the Act by holding an award of the Lok Adalat unassailable even when law is 10 Patna High Court C.R. No.235 of 2009 (10) dt.08-04-2013 well settled that there is an inherent power in a Court concerned to recall a decree on grounds of fraud. As the order impugned is a non speaking order without dealing with the issues raised by the contesting parties, any opinion by this Court on the rival contentions would materially prejudice the case of the parties and thus, this Court while refraining from expressing any opinion on merits of the rival contentions, would require the trial Court to reconsider the matter and dispose of the same in accordance with law after affording due opportunity to the contesting parties to establish their respective case in the light of the law laid down in the judgments of this Court and the Supreme Court as also taken note of in this order. For the reasons aforesaid, the order impugned dated

11.11.2008 cannot be upheld and is accordingly set aside. The matter is remitted to the trial Court to pass a fresh order in accordance with law expeditiously and preferably within a period of 3 months from the date of receipt/production of a copy of this order. This application is allowed but in the circumstances there shall be no order as to costs. (Jyoti Saran, J) Bibhash/-