ANURADHA PRASAD v. MIRA KULKARNI on 07 Jan 2025

Judgment

1. The present Appeal impugns the Judgment and Decree dated

14.10.2019 passed by the learned ADJ-05, (South), Saket Courts, New Delhi [hereinafter referred to as the “Impugned Judgment”]. By the Impugned Judgment, Application filed by the Respondent under Order VII Rule 11 of Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] being IA No. 19633/2013 was allowed, and the Application filed by Appellant under Order VI Rule 17 CPC being IA No.19/2014 was dismissed. Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021 BRIEF FACTS:

2. Briefly, the facts are that a suit being CS (OS) No. 1772/2005captioned Mira Kulkarni v. Anuradha Prasad & Ors.; [hereinafter referred to as the “first suit”] was filed before this Court seeking a decree of permanent injunction from restraining Defendants (including Appellant herein) from parting with possession of, dealing with, encumbering, alienating or selling any part of the property being N-126, Panchsheel Park, New Delhi-110017 [hereinafter referred to as

the “suit property”]. The prayers in the first suit read as follows: thereby restraining the defendants and “a) a decree for permanent injunction in favour of the plaintiff and against defendants, their agents, and any other person(s) acting on their behalf from parting with the possession of, dealing with and/or disposing of and/or encumbering and/or alienating, transferring and/or selling any part of the said suit property bearing N-126, in any manner Panchsheel Park, New Delhi-110017 whatsoever”

3. By an Order dated 26.12.2005 in the first suit, while issuing Notice in the matter, the Vacation Judge directed that the possession of the Respondent will not be disturbed and the Appellant will not part with the possession of the suit property.

4. Subsequently, by an Order dated 21.04.2006, the Court disposed of the first suit directing that both parties will not disturb the possession of each other and will not sell, alienate or transfer to a third party without consent of each other, until the suit property is partitioned by metes and bounds.

5. On 23.03.2007, parties entered into a settlement and executed a Memorandum of Family Settlement [hereinafter referred to as “family Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021 settlement”]. In pursuance thereof, a joint Application being IA No. 13058/2007 under Section 151 CPC was filed by the parties seeking modification of order dated 26.12.2005 passed in the first suit.

6. The joint Application was disposed of by the Order dated

16.11.2007 in the first suit, which directed that the family settlement be taken on record and that the parties shall abide with the terms of the family settlement.

7. On 12.03.2013, the Appellant filed a suit being CS(OS) 548/2013 captioned Ms. Anuradha Prasad v. Ms. Mira Kulkarni [hereinafter referred to as the “second suit”] after the lapse of 6 years seeking a declaration as to her rights in the suit property. The second suit was initially filed before this Court and, thereafter, on account of change of pecuniary jurisdiction1, was heard and adjudicated by the District Courts, Saket, New Delhi.

8. In essence, it was the case of the Appellant that, although the Appellant executed the family settlement, the settlement was obtained by misrepresentation, fraud and undue influence exercised upon her. The Appellant, thus, disputed the family settlement and the other documents executed.

8.1 It is apposite at this stage to extract the prayers in the second suit which are below: “a) pass a decree of permanent injunction, thereby restraining the Defendant from selling, encumbering or otherwise creating third party interest in the suit property bearing No.N.-126, Panchsheel Park, New Delhi, without the consent of Plaintiff 1 Notification no.27187/DHC/Orgl. dated 24.11.2015 Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021 until and unless the property is partitioned by metes and bounds; (b) pass a decree of Declaration, thereby declaring that the GPA, bearing Document No. 648, Addl. Book No. IV, Vol. No. 2979 on pages 109 to 112 on 22.2.2007, registered with Sub- Registrar, New Delhi, GPA, SPA, MOU dated 22.3.2007, joint application in High Court bearing I.A. No. 13058/2007 in CS(OS) No. 1772/2005 Memorandum of Settlement, Release Deed, Will, GPA, SPA of August 2008, are, null and void, cancelled, unenforceable and ineffective; (c) in the alternative of prayer (b) pass a decree of Declaration, thereby declaring GPA, bearing Document No. 648, Addl. Book No. IV, Vol. No. 2979 on pages 109 to 112 on 22.2.2007, registered with Sub-Registrar, New Delhi, GPA, SPA, MOU dated 22.3.2007, joint application in High Court bearing I.A. No. 13058/2007 in CS(OS) No. 1772/2005 Memorandum of Settlement, Release Deed, Will, GPA, SPA, of August 2008, are legally cancelled/terminated and the Defendant has no right in the share of the Plaintiff in the suit property; (d) pass a Decree of Declaration thereby declaring the Order dated 16.11.2007 passed by this Hon'ble Court in 1.A. No. Is without any consequence and does not confer any right, title or interest in favour of the Defendant, In the share of the Plaintiff in the suit property;….” in CS(OS) No. 1772/2005

9. The Respondent filed an Application under Order VII Rule 11 CPC, which was listed as IA No. 19633/2013 in the second suit. The grounds taken by the Respondent in its Application for rejection of plaint were: (i) Non-disclosure of a cause of action as it was contended that the plaint as a whole does not disclose a real cause of action. It was further contended that the execution of the documents are not disputed, but an objection has been raised on the basis of undue influence and misrepresentation after 6/7 years of their execution. Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021 (ii) The suit is barred by law under Order VI Rule 4 CPC as the Plaintiff is required to set out detailed particulars in respect of allegations of fraud, misrepresentation or undue influence and the same were not set out. (iii) The suit is barred under Order XXIII Rule 3/3A CPC as the order dated 16.11.2007 is a consent order and could only be set aside/modified by the particular Court that passed the order.

10. The Appellant filed an Application being IA No. 19/2013 under Order VI Rule 17 CPC in the second suit seeking an amendment of pleadings to include details of the Respondent’s alleged fraudulent sale of the Appellant’s 25% undivided share in a jointly-owned Uttarakhand property through sale deeds in 1991 and 1992, without her consent. The Appellant contended that both the New Delhi (suit property) and Uttarakhand property disputes stem from the same fraudulent scheme, involving coercion and manipulation by the Respondent.

11. As stated above, by the Impugned Judgment, the learned Trial Court rejected the plaint under Order VII Rule 11 CPC holding that the second suit was barred by law and that the documents executed between the parties were executed pursuant to a compromise which was accepted by an order dated 16.11.2007 in the first suit and that the challenge cannot be maintained by way of a separate suit in terms of Order XXIII Rule 3A CPC. It was further held by the learned Trial Court that prayers (b), (c) and (d) were barred under this provision. Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021 Since the prayers (b), (c) and (d) were held to be barred, the Appellant would have no right to seek the relief in prayer (a).

12. So far as concerns, the Application for amendment filed by the Appellant under Order VI Rule 17 CPC, the learned Trial Court, by the Impugned Judgment directed that by way of the said amendment, the Appellant sought to add the relief of partition in the present suit with respect to joint property of the parties located at Uttarakhand and such a relief would change the nature of the suit which was initially filed as a suit for declaration and permanent injunction which cannot be converted into a suit for partition.

12.1 It was further held that the relief of partition is qua the property at Uttarakhand and this Court has no jurisdiction over the said area in terms of Section 16 of the CPC. Thus, the Impugned Judgment dismissed the Application under Order VI Rule 17 CPC filed by the Appellant.

13. The only challenge raised by Appellant before this Court is to the dismissal of the suit and allowing of the Application under Order VII Rule 11 CPC. No submissions were made by either party with respect to that portion of the order which dismissed the Application under Order VI Rule 17 CPC. Contentions of the Appellant

14. At the outset, learned Counsel for the Appellant submits that family settlement, which forms the foundational ground of the dismissal of first suit, was obtained by fraud. It is averred that the Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021 Appellant was not aware of what she was signing as she was in a state of depression and was coerced into signing the family settlement.

14.1 Learned Counsel of the Appellant submits that the learned Trial Court incorrectly presumed that the Order dated 16.11.2007 passed in first suit was a compromise decree, and that the Appellant had sought to set aside that compromise decree in the second suit. It was contended that the Order dated 21.04.2006 in first suit uses the expression "it is thus agreed" in the order, without recording a lawful agreement or compromise in writing signed by the parties, thus, it does not constitute as a compromise decree. Reliance was placed on the judgment in the Banwari Lal v. Chando Devi (Smt) (Through LRs) & Anr.2 in this regard.

14.2 Learned Counsel for the Appellant while relying on Supreme Court judgment in Amro Devi & Ors v. Julfi Ram (Deceased) thr. Lrs. & Ors.3, submits that Order XXIII Rule 3 CPC, in unambiguous terms sets out that for a compromise to be valid there has to be a lawful agreement or compromise in writing and signed by the parties which would then be required to be proved to the satisfaction of the Court. Learned Counsel of Appellant asserts that the adjustment envisaged in Order XXIII Rule 3 CPC generally pertains to adjustments made before the suit is finally disposed of and primarily deals with the compromise of suits during the pendency of litigation. Thus, the Order dated 16.11.2007 passed after the disposal of the suit cannot be considered a compromise decree. 2 (1993) 1 SCC 581 3 2024 SCC OnLine SC 1715 Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021

14.3 Further, the Appellant contends that the joint application in the first suit sought modification of an earlier interim Order dated

26.12.2005, which had already been nullified by the final Order dated

21.04.2006. Thus, once first suit was disposed of, all interim orders passed previously would stand automatically vacated. Reliance was placed on the judgment in Kanwar Singh Saini v. High Court of Delhi4 to further this contention.

14.4 Lastly, it is submitted that the inherent powers of the Court under Section 151 CPC should be exercised to meet the ends of justice and prevent abuse of the Court's process. The Appellant contends that these powers cannot be used to re-open or alter a judgment or decree already passed, except in rare and exceptional circumstances. Neither the Order dated 16.11.2007 nor 21.04.2006 qualify as a compromise decree, hence the principle of Order XXIII Rule 3A CPC would not be applicable. Contentions of the Respondent

15. Learned Counsel for Respondent, on the other hand, contends that on 23.03.2007, the parties entered into a family settlement, which was filed before the Court and an order was passed thereupon on

16.11.2007. The Respondent argues that while the Appellant does not deny executing these documents or filing the joint application to take on record the compromise by way of a family settlement, the Appellant now, for the first time after 6 years, claims these were obtained by misrepresentation, fraud, and undue influence. 4 (2012) 4 SCC 307 Signature Not Verified Digitally Signed By:GEETA JOSHI Signing Date:09.01.2025 00:42:36 RFA 150/2021

15.1 Learned Counsel of the Respondent submits that pursuant to the Memorandum of Family Settlement/family settlement, the Appellant received Rs. 8 crores in cash as well as a separate property was purchased for her by the Respondent, in the same colony, where the Appellant is residing even today. Thus, it is contended that the family settlement was acted upon by both parties, despite which, the Appellant is seeking to have it set aside.

15.2 Learned Counsel of the Respondent relies upon a judgment of the Supreme Court in Anita International v. Tungabadra Sugar Works Mazdoor Sangh & Ors.5, to submit that it is a well-established principle of law, that neither parties to a lis nor any third parties have the authority to unilaterally determine the validity or voidness of a Court order. The Respondent submits that the Appellant, if aggrieved with the consent decree passed by the Order dated 16.11.2007, was required to approach a Court of competent jurisdiction, which is the Court which passed the consent decree to have the said order set aside under the provisions of Order XXIII Rule 3 of the CPC.

15.3 Reference in this regard is made by the learned Counsel for the Respondent to judgment in Pushpa Devi Bhagat (dead) through LR Smt. Sadhna Rai v. Rajinder Singh and others6 which has been filed by the Appellant to submit that the Order dated 16.11.2007, admittedly being a consent order, could only be set aside/modified by the very same Court that passed the said order, as no independent suit can be filed for setting aside a compromise decree on the ground that