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$-43 HIGH COURT OF DELHI
CM(M)113/2016
GEETA SINGH
Petitioner
Through Mr.S.K. Mishra,Adv.
CM(M)113/2016
GEETA SINGH
Petitioner
Through Mr.S.K. Mishra,Adv.
VERSUS
CHAUDHARY RAJINDER PAWAR Respondent
Through Nemo.
Through Nemo.
CORAM:
HON'BLE MS.JUSTICE INDERMEET KAUR
03.02.2016 C.M.No.4054/2016(Exemption)
Exemption is allowed subjectto alljust exceptions.
Application disposed of.
CMIMl 113/2016 & C.M.No.4053/2016 This petition which has been filed under Article 227 of the
Constitution ofIndia has lay challenge to an order dated 05.10.2015. On
05.10.2015,the Civil Judge had disposed ofan application under Order
XXIII Rule 3(A)ofthe CPC filed by defendant No.l. Defendant No.l is Geeta Singh, the wife of Saman Singh. Her submission is that the compromise deed which has been signed by her husband as her attorney agreeing to vacate the property on or before 30.06.2011 (in view of compromise decree dated 07.06.2011)is a nullity and not binding upon her as her husband had no authority to make a statement on her behalf.
The application filed by the wife seeking a redressal ofher grievance
03.02.2016 C.M.No.4054/2016(Exemption)
Exemption is allowed subjectto alljust exceptions.
Application disposed of.
CMIMl 113/2016 & C.M.No.4053/2016 This petition which has been filed under Article 227 of the
Constitution ofIndia has lay challenge to an order dated 05.10.2015. On
05.10.2015,the Civil Judge had disposed ofan application under Order
XXIII Rule 3(A)ofthe CPC filed by defendant No.l. Defendant No.l is Geeta Singh, the wife of Saman Singh. Her submission is that the compromise deed which has been signed by her husband as her attorney agreeing to vacate the property on or before 30.06.2011 (in view of compromise decree dated 07.06.2011)is a nullity and not binding upon her as her husband had no authority to make a statement on her behalf.
The application filed by the wife seeking a redressal ofher grievance
CM(M)113/2016 Page 1/7
2016:DHC:8811 and her submission that the compromise decree dated 07.06.2011 was not binding upon her was challenged by moving an application under
Order XXIII Rule 3 (A) of the CPC. This application was filed on
23.02.2012. A typed copy of the said application is on record. On an oral submission, learned counsel for the petitioner had earlier pointed out that this application was dated 18.05.2013. Be that as it may, the compromise decree dated 07.06.2011 had been passed on the statement made by the husband of the petitioner (Sarwan Singh) as also the statement of the plaintiff Chaudhary Rajinder Panwar. On 07.06.2011 before the decree was passed, the statement of Sarwan Singh who was holding a special power ofattorney on behalfofhis wife and proved as
Ex.P-1 had been taken on record. This special power of attorney is dated 23.05.2011 executed by the petitioner(Geeta Singh)in favour of her husband Sarwan Singh authorising him to make a statement on her behalf in a pending suit which has been filed by the petitioner
Chaudhary Rajinder Panwar. It has been informed on each page by the petitioner. A separate statement of Chaudhary Rajinder Panwar was also recorded wherein in view ofthe statement given by Sarwan Singh that the suit property will be vacated on or before 30.06.2011, the decree was passed.
The contention before this Court is that Geeta Singh (the petitioner) had an estranged relationship with her husband and the special power of attorney relied upon by her husband is a forged document.It was created by her husband. On a query put to the learned counsel for the petitioner, he admits that as on date Geeta Singh and her
CM(M)113/2016 Page 2/7 husband are living together; his submission is that the parties have an on and off relationship and sometimes they are living together and sometimes they are not. This submission ofthe learned counsel for the petitioner has itself created a doubt in the mind of the Court that challenge laid to the special power of attorney purported to have been executed by Geeta Singh in favour of her husband was in fact suspicious or this plea had now been set up by the petitioner (Geeta
Singh) after more than 8 months of the decree only to ward off the execution as admittedly till date(i.e. more than 5 years from the date of the compromise decree,) the suit property is still in possession of the petitioner Geeta Singh. Admittedly as on date, Geeta Singh is living with her husband in the suit property.
It has vehemently been argued that the execution has now been fixed for a date which is two days from today and stay may be granted.
The order impugned before this Court is the order dated
05.10.2015 which has been passed pursuant to a direction dated
18.05.2013 wherein the Court was of the view that for purposes of adjudication of the application under Order XXlll Rule 3 (A) of the
CPC certain issues are required to be framed and evidence is required to be led. After issues were framed, evidence was led and the impugned order was passed after trial. The impugnedjudgment had noted the facts in the correct perspective. The impugned
2016:DHC:8811 and her submission that the compromise decree dated 07.06.2011 was not binding upon her was challenged by moving an application under
Order XXIII Rule 3 (A) of the CPC. This application was filed on
23.02.2012. A typed copy of the said application is on record. On an oral submission, learned counsel for the petitioner had earlier pointed out that this application was dated 18.05.2013. Be that as it may, the compromise decree dated 07.06.2011 had been passed on the statement made by the husband of the petitioner (Sarwan Singh) as also the statement of the plaintiff Chaudhary Rajinder Panwar. On 07.06.2011 before the decree was passed, the statement of Sarwan Singh who was holding a special power ofattorney on behalfofhis wife and proved as
Ex.P-1 had been taken on record. This special power of attorney is dated 23.05.2011 executed by the petitioner(Geeta Singh)in favour of her husband Sarwan Singh authorising him to make a statement on her behalf in a pending suit which has been filed by the petitioner
Chaudhary Rajinder Panwar. It has been informed on each page by the petitioner. A separate statement of Chaudhary Rajinder Panwar was also recorded wherein in view ofthe statement given by Sarwan Singh that the suit property will be vacated on or before 30.06.2011, the decree was passed.
The contention before this Court is that Geeta Singh (the petitioner) had an estranged relationship with her husband and the special power of attorney relied upon by her husband is a forged document.It was created by her husband. On a query put to the learned counsel for the petitioner, he admits that as on date Geeta Singh and her
CM(M)113/2016 Page 2/7 husband are living together; his submission is that the parties have an on and off relationship and sometimes they are living together and sometimes they are not. This submission ofthe learned counsel for the petitioner has itself created a doubt in the mind of the Court that challenge laid to the special power of attorney purported to have been executed by Geeta Singh in favour of her husband was in fact suspicious or this plea had now been set up by the petitioner (Geeta
Singh) after more than 8 months of the decree only to ward off the execution as admittedly till date(i.e. more than 5 years from the date of the compromise decree,) the suit property is still in possession of the petitioner Geeta Singh. Admittedly as on date, Geeta Singh is living with her husband in the suit property.
It has vehemently been argued that the execution has now been fixed for a date which is two days from today and stay may be granted.
The order impugned before this Court is the order dated
05.10.2015 which has been passed pursuant to a direction dated
18.05.2013 wherein the Court was of the view that for purposes of adjudication of the application under Order XXlll Rule 3 (A) of the
CPC certain issues are required to be framed and evidence is required to be led. After issues were framed, evidence was led and the impugned order was passed after trial. The impugnedjudgment had noted the facts in the correct perspective. The impugned
ORDER
had answered issue
No. 1 which reads as under:- "Whether the judgment and decree dated 07.06.201J has been obtained byplayingfraud by defendantNo.1? OPA"
No. 1 which reads as under:- "Whether the judgment and decree dated 07.06.201J has been obtained byplayingfraud by defendantNo.1? OPA"
CM(M)113/2016 Page 3/7
The findings returned on this issue inter-alia read as follows;-
''The onus to prove this issue was upon the applicant. Despite granted several opportunities the applicant/ defendant no. 1 did not address the final arguments. However, from the evidence and the contentions raised by the applicant/defendant no.1 it is stated that the plaintiff/respondent herein has obtained thejudgment/decree dated
07.06.2011 byplayingfraud upon the court. It is alleged that applicant
/ defendant no.l has not given any authority to defendant no.2 for entering into any compromise with the plaintiff and she was never apprised by the defendant no.2 qua the settlement arrived with the plaintiffbefore the Courtandpassing ofconsent decree thereof.
Ld. Counselfor plaintiff/ respondent argued that applicant / defendant no.l has admitted her signatures over the compromise deed
Ex. C-2as wellas her affidavitsupporting the compromise Ex. C-1.It is further argued that the present application is merely an afterthought to defeat the rightful claim oftheplaintiff/respondent.Itisfurther argued that AW-1 has failed to produced on record any cogent evidence to show her ownership over the suitproperty. Rather she has come before this Court with unclean hands disputing the title of the plaintiff/ respondent in whosefavour a valid decree has been passed and nothing on record suggest that the same has been procured by playingfraud upon the Court. Hence, it isprayed thatthe application be dismissed.
It is very important to note here that applicant/defendant no. 1 who examined herselfas AW-1 has admitted her sisnatures over the compromise deed and affidavitin supportthereof.Applicant/
The findings returned on this issue inter-alia read as follows;-
''The onus to prove this issue was upon the applicant. Despite granted several opportunities the applicant/ defendant no. 1 did not address the final arguments. However, from the evidence and the contentions raised by the applicant/defendant no.1 it is stated that the plaintiff/respondent herein has obtained thejudgment/decree dated
07.06.2011 byplayingfraud upon the court. It is alleged that applicant
/ defendant no.l has not given any authority to defendant no.2 for entering into any compromise with the plaintiff and she was never apprised by the defendant no.2 qua the settlement arrived with the plaintiffbefore the Courtandpassing ofconsent decree thereof.
Ld. Counselfor plaintiff/ respondent argued that applicant / defendant no.l has admitted her signatures over the compromise deed
Ex. C-2as wellas her affidavitsupporting the compromise Ex. C-1.It is further argued that the present application is merely an afterthought to defeat the rightful claim oftheplaintiff/respondent.Itisfurther argued that AW-1 has failed to produced on record any cogent evidence to show her ownership over the suitproperty. Rather she has come before this Court with unclean hands disputing the title of the plaintiff/ respondent in whosefavour a valid decree has been passed and nothing on record suggest that the same has been procured by playingfraud upon the Court. Hence, it isprayed thatthe application be dismissed.
It is very important to note here that applicant/defendant no. 1 who examined herselfas AW-1 has admitted her sisnatures over the compromise deed and affidavitin supportthereof.Applicant/
CM(M)113/2016 Page 4/7 r defendant no.l has denied her signatures over the special power of attorney Ex.D-1 by virtue ofwhich she has empowered the defendant no.2 to enter any compromise with the plaintiffon her behalf AW-1 has not disputed categorically her thumb impression appended on
Ex.D-1. The onus toprove thatthe said document was notexecuted by her was upon the applicant/defendant no.l herself which remained undischarged. It is further important to note here that applicant/ defendant no.l is a graduate and therefore, the plea taken by her that her husbandprocured her signatures on blank papers is apparently a flmsy ground taken in the application which cannot be believed by any prudent person. Especially when AW-1 admitted her signatures over the compromise deed and the affidavit supported with the same.
No complainthas ever beenfiled by applicant/defendantno.l against the defendant no.2 i.e. her husbandfor such alleged misuse ofthe blank signed documents.
In her application u/o XXIIIRide 3A CPC inpara no. 7applicant
/defendant no.l claimed to have gather the information qua the proceedings pending before the Court in the month ofMay 2011 when she received ht summons whereas in her evidence by way of her affidavit she makes a completely contradictory statement in para no. 5 when she says that she came to know about the proceedings upon receiving ofnotice in the execution petition. It is to be seenfurther that applicant/defendant no.1 hasfailed to prove on record by leading any cogent evidence that she is the owner ofsuit property rather I agree with the argumentputforth byLd. Counselforplaintiffthatthepresent
CM(M)113/2016 Page 5/7 application has beenfiled as an after thought to defeat the claim ofthe plaintiffin which the applicant/defendant no.1 has succeeded to an extent that almost four years have been passed in the present proceedings and the plaintiff/ respondent is unable to obtain the possession ofthe suitpremises in view ofthe consent decreepassed.
In view ofthe evidence led, this Court can safely conclude that the applicant / defendant no.1 has miserably failed to discharge the onus lying upon her. Nothing on record proves that the judgement/ decree is obtained by the plaintiff / respondent by playing fraud.
Accordingly, this issue stands decided against the applicant/defendant no.l and infavour oftheplaintiff/respondent.
As a consequence to myfindings on the above mentioned issue, application u/o XXIII Rule 3A CPC is hereby dismissed. Application stands disposed offaccordingly."
The present petition which has assailed this finding appears to be nothing but an abuse of the process of the Court; it is a travesty of justice that insptie of an undertaking having been given by the petitioner (through her husband) as way back as on 07.06.2011, even after five years, the landlord has not been able to get back the suit property. Warrants ofpossession are stated to have been ordered by the
Executing Court but even at this stage,learned counsel for the petitioner has vehemently argued that the warrants ofpossession be stayed. There is absolutely no case made out in favour ofthe petitioner.
CM(M)1 13/2016 Page 6/7 <v Thispetitionisnothingbutanabuseofthjprocessoflaw.Itis malafide.It is dismissed with costs quantified at Rs.10,000/-.
INDERMEET KAUR,J FEBRUARY 03,2016 A
Ex.D-1. The onus toprove thatthe said document was notexecuted by her was upon the applicant/defendant no.l herself which remained undischarged. It is further important to note here that applicant/ defendant no.l is a graduate and therefore, the plea taken by her that her husbandprocured her signatures on blank papers is apparently a flmsy ground taken in the application which cannot be believed by any prudent person. Especially when AW-1 admitted her signatures over the compromise deed and the affidavit supported with the same.
No complainthas ever beenfiled by applicant/defendantno.l against the defendant no.2 i.e. her husbandfor such alleged misuse ofthe blank signed documents.
In her application u/o XXIIIRide 3A CPC inpara no. 7applicant
/defendant no.l claimed to have gather the information qua the proceedings pending before the Court in the month ofMay 2011 when she received ht summons whereas in her evidence by way of her affidavit she makes a completely contradictory statement in para no. 5 when she says that she came to know about the proceedings upon receiving ofnotice in the execution petition. It is to be seenfurther that applicant/defendant no.1 hasfailed to prove on record by leading any cogent evidence that she is the owner ofsuit property rather I agree with the argumentputforth byLd. Counselforplaintiffthatthepresent
CM(M)113/2016 Page 5/7 application has beenfiled as an after thought to defeat the claim ofthe plaintiffin which the applicant/defendant no.1 has succeeded to an extent that almost four years have been passed in the present proceedings and the plaintiff/ respondent is unable to obtain the possession ofthe suitpremises in view ofthe consent decreepassed.
In view ofthe evidence led, this Court can safely conclude that the applicant / defendant no.1 has miserably failed to discharge the onus lying upon her. Nothing on record proves that the judgement/ decree is obtained by the plaintiff / respondent by playing fraud.
Accordingly, this issue stands decided against the applicant/defendant no.l and infavour oftheplaintiff/respondent.
As a consequence to myfindings on the above mentioned issue, application u/o XXIII Rule 3A CPC is hereby dismissed. Application stands disposed offaccordingly."
The present petition which has assailed this finding appears to be nothing but an abuse of the process of the Court; it is a travesty of justice that insptie of an undertaking having been given by the petitioner (through her husband) as way back as on 07.06.2011, even after five years, the landlord has not been able to get back the suit property. Warrants ofpossession are stated to have been ordered by the
Executing Court but even at this stage,learned counsel for the petitioner has vehemently argued that the warrants ofpossession be stayed. There is absolutely no case made out in favour ofthe petitioner.
CM(M)1 13/2016 Page 6/7 <v Thispetitionisnothingbutanabuseofthjprocessoflaw.Itis malafide.It is dismissed with costs quantified at Rs.10,000/-.
INDERMEET KAUR,J FEBRUARY 03,2016 A
CM(M)113/2016- Page 7/7