Vipin Kumar Manaktala v. Shri Vinod Kumar & Ors.

16. The plaintiff claims that thereafter, vide Sale Deed registered on 18.01.2013, in terms of the Memorandum of Settlement, Mr.Tilak Raj, Mr.Vinod Kumar, and Mr.Ranjan Kumar transferred 1/3rd Share of the Suit Property for a paltry sum of Rs.66,10,500/- to M/s Gora Mal Hari Ram Pvt Ltd.

17. The plaintiff claims that it is only around the beginning of the year 2020, when the son of the plaintiff went to inspect the Suit Property on behalf of the plaintiff, that he discovered that a third party is in occupation of a portion of the Suit Property.

18. The plaintiff states that on inquiry, it was revealed that a portion of the Suit Property has now been sold to Smt. Raj Kumari Gupta, the defendant no.4 herein, vide Sale Deed dated 07.10.2019 executed by M/s Gora Mal Hari Ram Pvt. Ltd. in her favour. The plaintiff claims that it was only on further inquiry that the fact of the above-referred Memorandum of Family Settlement, wherein Mr.Vinod Kumar and Mr.Ranjan Kumar, without the prior consent of the other legal heirs of Mr.Satya Pal, including the plaintiff herein, had given away 1/3rd of the Suit Property to Mr.Tilak Raj and had transferred another 1/3rd of the Suit Property to M/s Gora Mal Hari Ram Pvt. Ltd. came to the knowledge of the plaintiff. The plaintiff claims that it is only thereafter, that it has also come to his knowledge that Mr.Pawan Manaktala has sold 327.[1] sq. meters of the Suit Property to M/s Gora Mal Hari Ram Pvt Ltd vide Sale Deed dated 19.06.2020.

19. Based on the above facts, the plaintiff filed the present suit asserting that the Memorandum of Family Settlement dated 16.04.2012, in the absence of the consent of the plaintiff, is illegal and deserves to be declared null and void. The plaintiff claims that the consequential judgment and decree dated 13.09.2012 passed by this Court in CS(OS) 2850/1987, having been obtained through the exercise of fraud, is also null and void. The plaintiff challenges the consequential and further Sale Deeds executed transferring the rights in the Suit Property.

20. The plaintiff asserts the cause of action for filing the suit, as under:

21. The plaintiff in the suit prays for the following reliefs:

13th day of September, 2012 passed by this Hon'ble Court in CS(OS) No. 2850/1987 obtained through exercise of fraud, as null, void, non-est in law and not binding against plaintiff (Document at srl. no. 26 in the index-iv);and/or

Document No.698 in Additional Book No.1 Volume No.2057[8] on pages 114 to 123 dt. 18.01.2013 with the office of the Sub Registrar, Sub-Distt. No. II Janakpuri, New Delhi executed by (1) Shri Prithvi Manaktala as Vendor and (2) Shri Tilak Raj as Confirming Party in favour of M/s Gora Mal Hari Ram Pvt. Ltd., null, void, nonest in law (Document at srl no. 27 in the index-iv); and/or

Defendant No.1 and an inquiry into damages, for use and occupation against Defendant No.1 to 5 (a), (b) and (c) and Defendant no. 7 jointly and/or severally; and/or

I. Interest @18% p.a. on the amount that may be decreed/determined as payable.

SUBMISSIONS OF THE APPLICANTS:

22. The learned senior counsel for the defendant no.4, and the learned counsels for the defendant nos.1, 2, 3 and 7, and the defendant no.5(a), (b) and (c) submit that the present suit is not maintainable in view of Order XXIII Rule 3 A of the CPC, as it challenges a decree passed on the basis of consent. In support, they have placed reliance on the following judgements: M/s Sree Surya Developers and Promoters v. N. Sailesh Prasad and Ors., AIR 2022 SC 1031; i. Triloki Nath Singh v. Anirudh Singh, AIR 2020 SC 2111; ii. R. Rajanna v. S.R. Venkataswamy, AIR 2015 SC 706; iii. Banwari Lal Vs Chando Devi and Anr., AIR 1993 SC 1139; iv. Pushpa Devi Bhagat v. Rajinder Singh & Ors., AIR 2006 SC 2628; v. Devineni Tirupathirayudu v. Surapaneni Suramma (D) by LRs &Ors.,2009 (5) JT 103 and vi. Ms. Deepshree Singh v.s Sh. Rishi Pratap Singh &Ors., 2021 SCC OnLine Del 2676.

23. They further submit that the cause of action to file the present suit would have arisen when the decree based on the Memorandum of Settlement dated 16.04.2012 was passed on 13.09.2012. They submit that the present suit is, therefore, barred by limitation. In support of this submission, they place reliance on the judgment of the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) (D) thr. LRs & Ors., AIR 2020 SC 3310.

24. They submit that the plaintiff was a party to the earlier suit filed by Mr.Tilak Raj, being CS(OS) 2850/1987. The plaintiff chose not to appear in the said suit and, therefore, he cannot now claim additional rights because of his absence. They submit that by a letter dated 24.03.2012, the defendant nos.[1] and 2 had informed the plaintiff of the ongoing talks of settlement with Mr.Tilak Raj and Mr.Prithvi Raj. In response to the said letter, the plaintiff sought information about the terms of the settlement and stated that any decision taken on his behalf without his consent shall not be binding on him. In spite of the same, the plaintiff took no steps to represent his interests in the said suit. The plaintiff, therefore, cannot claim that he was not aware of the settlement or the decree passed in the suit. In support, they have placed reliance on Hameed Joharan v. Abdul Salam, 2001 (7) SCC 573 and Moddus Media P. Ltd. v. M/s Scone Exhibition P. Ltd., 2017 SCC OnLine Del 8491.

25. They further submit that by way of clever drafting, the plaintiff cannot generate a cause of action to file the present suit in his favour. On a holistic reading of the suit, the suit is clearly not maintainable and is liable to be dismissed. In support they place reliance on judgments in T. Arivandanam v. T.V. Satyapal and Anr., 1977 (4) SCC 467; Abdul Gafur and Anr. v. State of Uttarakhand; 2008 (10) SCC 97; Swarn Singh v. Surinder Kumar, 2012 (1) AD (Delhi) 266; and Vidur Impex and Traders Private Limited and Ors. v. Pradeep Kumar Khanna and Ors 2017 (241) DLT 481.

SUBMISSIONS ON BEHALF OF THE PLAINTIFF:

26. On the other hand, the learned senior counsel for the plaintiff submits that the application under Order XXIII Rule 3 of the CPC filed in CS(OS) 2850/1987 stated that no claim was made by Mr.Tilak Raj against the plaintiff herein. The plaintiff was sought to be deleted from the array of the parties. Placing reliance on Ajcon Capital Markets Ltd. v. Maya Rasayan Ltd., 2003 SCC OnLine Bom 341; Vimal Jain v. Govt. of NCT & Ors., 2018 SCC OnLine Del 12525; and Kandapazha and Ors. v. Chitraganiammal and Ors, 2007 (7) SCC 65, he submits that once the plaintiff in a suit has abandoned his claim against a particular defendant, no further order on the said application needs to be passed and the suit against the said defendant shall stand dismissed. He submits that, therefore, on the date of the decree, even though the plaintiff herein was not formally deleted from the array of the parties, he would stand deleted by the operation of law and was no longer a party to the Suit.

27. The learned senior counsel for the plaintiff submits that once it is accepted that the plaintiff herein stood deleted from the array of the parties in the earlier suit filed by Mr.Tilak Raj, he became a stranger to the suit, and can challenge a decree passed therein by way of a separate suit. He submits that the provision of Order XXIII Rule 3 A of the CPC would not be applicable to a stranger to the suit. He places reliance on Sneh Gupta v. Devi Sarup, 2009 (6) SCC 194; Krishnamma v. Kalappa, MANU/KA/3365/2022; Manoj Kumar Santhalia v. Vivek Goenka, 1995 (2) Mad LJ 622; and Sukruti Dugal v. Jahnavi Dugal and Ors., 2019 SCC OnLine Del 10226.

28. He submits that the decree passed in the earlier suit is unenforceable as it was not signed by all the parties to the suit. In support, he placed reliance on Prasanta Kumar Sahoo and Ors. v. Charulata Sahu and Ors., 2023 SCC OnLine SC 360.

29. On the question of limitation, he submits that limitation being a mixed question of facts and law, the suit cannot be rejected relying upon the Order VII Rule 11 of the CPC. He submits that the limitation for filing the present suit arose only on the plaintiff gaining knowledge of the decree and the subsequent Sale Deeds that are being challenged in the present suit. In support, he placed reliance on Chhotanben and Anr. v. Kiritbhai Jalkrushnabhai Thakkar and Ors., (2018) 3 SCR 422 and Mst. Suthara v. Bibi Samsunisha, (1997) 45 BLJR 924.

30. On the issue of due diligence, he submits that the plaintiff was not aware of the decree passed in the earlier suit as he was under the impression that Mr.Vinod Kumar is protecting his interests in that suit. In any case, it is a mixed question of fact and law, and the determination thereof should await the trial of the suit.

ANALYSIS AND FINDINGS:

31. I have considered the submissions made by the learned counsels of the parties. Order XXIII Rule 3A of the CPC:

32. Order XXIII Rule 3A of the CPC reads as under: “3A. Bar to suit.—No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”

33. Interpreting the above provision, the Supreme Court in M/s Sree Surya Developers and Promoters (supra) held that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Order XXIII Rule 3A bars a suit to set aside the decree on the ground that the compromise on which the decree was passed was not lawful.

34. In Triloki Nath Singh (supra), the Supreme Court reiterated that the scheme of Order XXIII Rule 3 of the CPC is to avoid multiplicity of litigation and permits the parties to amicably come to a settlement which is lawful, is in writing, and a voluntary act on the part of the parties. Finality of decisions is an underlying principle of all adjudicating forums and thus, the creation of further litigation should never be on the basis of a compromise between the parties; it is with this intent that Order XXIII Rule 3A of the CPC puts a specific bar on the maintainability of a suit on the ground that the compromise on which the decree is based was not lawful.

35. This Court in Ms.Deepshree Singh (supra), held that there is no law which stipulates that a Court is bound to serve any compromise application on a party, who had wilfully allowed it to be proceeded exparte. The Court held that having not elected to participate in the suit, it was not open to the party to contend that he/she was taken by surprise by the consent decree.

36. From the above, it is evident that the remedy of a party to a suit to challenge a decree that has been passed on the basis of a compromise under Order XXIII Rule 3 of the CPC, is only by the way of moving to the same Court which passed the decree, and in view of Order XXIII Rule 3A of the CPC, a fresh suit shall not lie to set aside such a decree passed.

37. Having said the above, there are certain peculiar facts in the present suit.

38. The plaintiff herein had been impleaded as the defendant no.1(b) in the previous suit, that is, CS(OS) no.2850/1987. The Memorandum of Settlement dated 16.04.2012 is not signed by the plaintiff herein. Mr.Tilak Raj, who was the plaintiff in CS(OS) no.2850/1987, filed an application under Order XXIII Rule 3 of the CPC, specifically giving away his relief against the plaintiff herein in the said suit, by stating in the application under Order XXIII Rule 3, as under: “4........... Plaintiff does not claim any relief against defendant No1(b), (d), 2,4,[5] and 7.”

39. Therefore, as far as the plaintiff herein is concerned, the application of Sh.Tilak Raj was in nature of an application under Order XXIII Rule 1 of the CPC.

40. In Ajcon Capital (supra), the High Court of Bombay has held that for abandoning a claim, the plaintiff need not even make an application to the Court for seeking leave of the Court; a mere statement made by the plaintiff before the Court that he wishes to abandon a part of the claim would be enough.

41. In Vimal Jain(supra), this Court placing reliance on the judgment of the Supreme Court in Shiv Prasad v. Durga Prasad and Anr., (1975) 1 SCC 405, and of the Bombay High Court in Anil Dinmani Shankar Joshi v. Chief Officer, Panvel Municipal Council, AIR 2003 Bom 238, held that mere filing of an application seeking withdrawal of the writ petition was enough and no order of the Court permitting the petitioner to withdraw the same is necessary. The Court may make a formal order disposing of the application as withdrawn, but the withdrawal is not dependent on the order of the Court; the act of withdrawal is complete as soon as the applicant intimates the Court that he withdraws the application.

42. In Kandapazha Nadar and Others (supra), the Supreme Court reiterated that the order recording the withdrawal of a suit is not a decree, it is a mere recording of the fact of the withdrawal of the suit.

43. From the above, it would be apparent that as far as the plaintiff herein is concerned, no decree was passed by the order dated 13.09.2012 of this Court in CS(OS) 2850/1987. In fact, as on the date of the said order, the plaintiff herein was not even a party to the said suit, the same having been withdrawn against him with Mr.Tilak Raj filing the application under Order XXIII Rule 3 of the CPC contending that he does not press any relief against inter alia the plaintiff herein.

44. Once, it is held that the plaintiff herein was no longer a party to the earlier suit, that is, CS(OS) no.2850/1987 filed by Mr.Tilak Raj, the bar contained in Order XXIII Rule 3A of the CPC would not be attracted to the plaintiff herein. The said bar is applicable only to the parties to the settlement or persons claiming through or under such parties to the settlement. The bar cannot be applied to strangers or non-parties to the settlement.

45. In Sukruti Dugal (supra), this Court has held that where a person is not a party to the compromise but is aggrieved therefrom, such an aggrieved person can file a suit for appropriate relief disregarding the compromise decree. A suit by a stranger to set aside the compromise decree which affects his rights is not barred by Order XXIII Rule 3A of the CPC. I may quote from the judgment as under:

13. Similar view has been expressed by the coordinate bench of Calcutta High Court in Ashis Kumar Ghosh v. Gopal Chandra Ghosh, 2004 SCC OnLine Cal 173 wherein it was held as under:—

14. The amendments sought, to my mind, state the obvious. If the Plaintiff has independent right over the suit properties on the basis of the averments stated in the plaint, the Court would have to necessarily examine the same irrespective of the compromise. Therefore, I do not find any legal bar regarding the maintainability of the suit seeking the relief as sought in the proposed amended suit. It is also settled law that a liberal approach has to be adopted by the Courts while dealing with the application seeking amendment. Moreover, at this stage, I am not inclined to evaluate the merits of proposed amendments or the reliefs sought in the present application. That would have to be necessarily examined at the appropriate stage. Accordingly, I allow the application and take the proposed amended plaint on record.”

46. I, therefore, find no merit in the objection of the defendants, relying upon Order XXIII Rule 3A of the CPC, to the maintainability of the present suit. Limitation:

47. On the question of limitation, it is to be remembered that an application under Order VII Rule 11 is to be determined on the basis of the pleadings and the documents filed by the plaintiff and not by the defence that is set up by the defendants. Limitation is also a mixed question of facts and law.

48. In the present case, the plaintiff has asserted that he gained knowledge of the decree passed only in 2020. Though, it may be said that the above assertion has to be taken with a pinch of salt, inasmuch as, the plaintiff admittedly knew of the filing of the previous suit by Mr.Tilak Raj (as he had been impleaded as a legal representative of his father-late Mr.Satya Pal in the said suit) and also of the talks of settlement taking place between Mr.Tilak Raj and the defendant nos.[1] and 2 (as is evident from the letters dated 24.03.2012 and 23.04.2012), the question whether the assertion of the plaintiff that he came to know of the decree passed and the subsequent/consequential sale deeds only in 2020, can be determined after the evidence has been led by the parties on this issue. It cannot be a ground to dismiss the suit while considering an application under Order VII Rule 11 of the CPC.

49. The plea of the learned counsels for the defendants that the plaintiff cannot take any advantage of his own laxity in defending the earlier Suit and cannot plead ignorance of the decree passed therein, would certainly have relevance in determining whether the Suit is barred by limitation, however, this plea can also be determined only when the parties lead their evidence on this issue.

CONCLUSION

50. In view of the above, I find no merit in the present applications. The same are dismissed, however, making it clear that all and any observations made hereinabove are only for the purposes of adjudicating the present applications and shall not be construed as a final opinion being rendered on the issues raised. I.A.12520/2020, 2851/2021, and 2880/2021

51. These applications have been filed by the defendant no.4 and defendant nos.1, 2, 3 and 7 respectively, praying for the vacation of the interim order dated 22.12.2020 passed by this Court.

52. This Court, by its ad interim ex-parte order dated 22.12.2020 had restrained the defendants from creating any third party rights by alienating, selling, encumbering, assigning, leasing, or licensing the Suit Property.

53. The learned senior counsel for the defendant no.4 and the learned counsel for the defendant nos.1, 2, 3 and 7 have reiterated the submissions made and recorded hereinabove, in support of the present application. The same have already been considered hereinabove. However, the final outcome of the present applications would differ due to the same.

54. As noted hereinabove, the plaintiff in the present suit was admittedly a party to the previous suit filed by Mr.Tilak Raj, being CS(OS) 2850/1987. He did not enter appearance in the said suit and in his absence, by an order dated 13.09.2012, decree was passed based on the Memorandum of Family Settlement executed between Mr.Tilak Raj, the defendant nos.1, 2 and 7. The present suit has been filed almost 8 years thereafter. In the meantime, a parcel of the suit land has been transferred in favour of the defendant no.4 vide sale deed dated 07.10.2019.

55. As noted hereinabove, the plea of the plaintiff that he was not aware of the decree dated 13.09.2012 passed in the earlier suit, has to be taken with a pinch of salt, especially in light of the letters dated 24.03.2012 and 23.04.2012. The plaintiff knew of the ongoing settlement talks and still took no action to protect his interests in the Suit. The plaintiff cannot hide behind his submission that he was depending upon defendant no. 1 to protect his interest in the Suit. If this be so, then he must equally remain bound by the settlement that defendant no. 1 and Late Mr. Tilak Raj entered into in the said Suit. The delay, therefore, would act against the claim of the plaintiff for the continuation of the interim injunction against the whole parcel of the Suit Land.

56. In addition to the above, the plaintiff in paragraph 4(t) of the plaint has asserted as under: “t) As the matter now stands, 2/3rd portion of the suit property was alienated by Shri Vinod Kumar and Ranjan Kumar in collusion with Pawan Manaktala, of the remaining 33 percent of the suit property that was left, 327.[1] sq. mtr. of the suit property was sold by Pawan Manaktala to M/s Goral Mal Hari Ram Ltd., recognizing the same as his rightful share, now only 25% of the property remains unalienated, and 8.33% stands transferred to M/s Gora Mal Hari Ram Ltd. i.e. a company belonging to Defendant No. 1, whereas 25 percent of the suit property belongs to the plaintiff (which is almost the same as the unalienated portion) and ought to be declared so and partitioned by metes and bounds in the exclusive name of Shri Vipin Kumar.”

57. The plaintiff himself, therefore, has asserted that 25% of the Suit Property remains unalienated and ought to be declared as belonging to the plaintiff. Though the learned senior counsel for the plaintiff is right in his submission that in a suit for partition, a co-owner cannot claim any right in a specific portion of the Suit Property till the property is finally divided by metes and bounds, in the present case, the above assertion of the plaintiff would bind the plaintiff and influence this Court in modifying the interim relief granted to the plaintiff. Coupled with the delay in filing of the Suit, the above assertion of the plaintiff himself would have an important bearing in determining the balance of convenience and irretrievable damage, the two important components of the trinity test.

58. In the present case, the plaintiff himself has identified the land out of the Suit Property that can be granted to him even if he is to succeed in the Suit. The interest of the plaintiff can be adequately protected by restricting the interim order dated 22.12.2020 only to that parcel of the land of the Suit Property which the plaintiff has identified in paragraph 4(t) of the plaint.

CONCLUSION

59. Accordingly, the interim order dated 22.12.2020 is modified to the extent that during the pendency of the present suit, the interim order dated 22.12.2020 shall operate only against the unalienated parcel of land of the Suit Property standing in the name of the defendant no.1, 2 and 7, and as identified by the plaintiff in paragraph 4(t) of the plaint.

60. The applications are disposed of in the above terms. CS(OS) 446/2020 & IA 12522/2020

61. List before the learned Joint Registrar (Judicial) on 24th August, 2023 for further proceedings.

NAVIN CHAWLA, J JULY 4, 2023/AN/RP