Mani Devi & Ors. v. Sunil Kumar & Ors.

1. Exemptions allowed, subject to all just exception.

2. Applications stand allowed. C.M.14578/2019 in RFA(OS) 27/2019 C.M.14582/2019 in RFA(OS) 28/2019 (exemption from filing court fee) It is submitted that the court fee stands filed. 2019:DHC:2238-DB The applications are dismissed being rendered infructuous. RFA(OS) 27/2019 & C.M.14577/2019 (delay) RFA(OS) 28/2019 & C.M.14581/2019 (delay)

3. Both the appeals arise out of the common order dated 20.08.2018 passed by the learned Single Judge on applications being I.A.Nos.11019/2018 & 11020/2018 filed by the appellant seeking recall of the order dated 25.07.2018 on the ground that the settlement has been obtained by respondent no.1 by way of misrepresentation and fraud. The parties in the present appeals are brothers and sisters. Since both the appeals arise out of commons order, the arguments addressed are common and almost identical applications were filed before the Single Judge. Accordingly, the present appeals are also being disposed of by a common order.

4. For the sake of convenience, the parties are being referred to as per RFA (OS) 27/2019. Mrs.Shalini Gupta alias Mrs.Sheela filed a suit for partition and possession against the defendants who are all parties in the present appeal. In para 5 of the plaint, details of 11 properties were mentioned which according to the plaintiff form a part of the estate left behind by her late father Mr.Kailash Chand Goyal. It is a common stand that out of 11 properties, 6 properties being items no.5 to 10, in fact, do not form part of the estate of late Mr.Kailash Chand Goyal. Thus, the suit properties comprised of items no.1, 2, 3, 4 and 11 are as follows:

┌─────────────────────────────────────────────────────────────────────────────────────────┐
│       Sl.No.                          Description of the property                       │
├─────────────────────────────────────────────────────────────────────────────────────────┤
│          1.      Plot No.J-3A, Green Park Extn., New Delhi                              │
│          2.      Flat No.102, Building No.32/33, Kushal Bazar, Nehru Place,             │
│                  Delhi.                                                                 │
│ RFA (OS) Nos.27/2019 & 28/2019                                            Page 2 of 8   │
│                                                                      2019:DHC:2238-DB   │
│          3.      Flat no.105, Building No.32/33, Kushal Bazar, Nehru Place,             │
│                  Delhi.                                                                 │
│          4.      Residential house bearing No.-RS-12, (Municipal No.379/1,              │
│                  Punjab Bazar) Kotla Mubarakpur, New Delhi.                             │
│         11.      Agricultural land in revenue estate of Village Chauma in               │
│                  Khasra No. (area) – Khasra No.49/21/1 (5-13), 21/2 (2-7), 65/1         │
│                  (8-0), 10 (8-0); 11 (8-0), 20 (8-0), 21/1 (6-0) total measuring        │
│                  46-0 bighas.                                                           │
└─────────────────────────────────────────────────────────────────────────────────────────┘

12. We have examined the matter on merits as well. The common stand of the appellants is that they were forced and coerced to enter into a settlement. They were under the bonafide impression that the settlement is with respect to J-3A, Green Park extension and without being made to understand the terms of the settlement, the plaintiff was forced to withdraw the suit. Another ground raised was that the parties were taken by surprise, offer was made in court on the same date cheques were handed over and parties were forced to make a settlement and sign the order sheet. We find no force in the settlement made by learned senior counsels appearing for the appellants for the reason that not only the parties were present at the time of settlement, the counsels as well as the parties have signed the order-sheet. In case, the settlement was only with respect to the Green Park property, there was no reason to plaintiff to withdraw the entire suit. To say that they were taken away by surprise. Reading of the order would show that the parties were in fact, negotiating for a settlement prior to 25.07.2018 as well. Mr.Aggarwal, submits that the defendants had handed over to the plaintiff a family settlement in January, 2017 which was then handed over by the plaintiff to the local commissioner and forms part of the record of the Local Commissioner and filed before the Single Judge, which would also in fact suggest that the settlement offered and considered was composite in nature and not with respect to only one property. We also find that post the settlement having been arrived at on 25.07.2018, order-sheet having been signed by the parties and their respective counsels would show that the appellants were not without legal help or assistance and thus, it cannot be said that they were misled or coerced and fraud has been played upon them and the parties having signed the order-sheet, accepted the settlement, we are unable to find any infirmity in the view taken by the Single Judge. The appellant cannot be permitted to wriggle out of the settlement as on such grounds and moreover there would be no finality in the matters even after there is a settlement. Another factor which cannot be lost track is that all the parties post the dismissal of their applications on 20.08.2018 have acted upon the terms of the settlement, cheques stand encashed and in the case of Ms.Mamta Devi, cheque stands presented. Once the terms of the settlement were acted upon, any act of coercion or fraud complained of stand condoned as the cheques were not deposited after seeking leave of the court nor the deposit of cheques was conditional in nature. We find no grounds to entertain the appeals on merits as well. Accordingly, the appeals and the pending applications being C.M.Nos.14577/2019 and C.M.14581/2019 are dismissed. G.S. SISTANI, J JYOTI SINGH, J APRIL 23, 2019 rb