2005 Supreme(Bom) 1344
IN THE HIGH COURT OF BOMBAY
Damodar Tukaram Gaunkar
Versus
Gopinath Rama Gaunkar
Decided On : (September 30, 2005) 2006
Headnote:Civil Procedure Code, 1908 - Section 100 - Second appeal - Against judgment/decree of Addi- tional District Judge declaring judg- ment/decree of Civil Judge void - Substantial questions of law - Plaintiff filed suit for declaration - Contested by defendant - Suit dismissed by Civil Judge - Appeal - Allowed - Suit directed to proceed - A separate suit filed to challenge consent decree not maintainable - Plaintiff cannot be allowed to lead evidence in absence of plea not being taken in plaint - Consent terms explained to plaintiff by Presiding Officer - Plaintiff not challenged consent terms agreed to by him and defendant filed before Civil Judge - Civil Judge justified in dismissing suit - Additional District Judge unjustified in reversing decision of Civil Judge - Second appeal succeeds - Impugned order of Additional District Judge set aside - Judgment/ order of Civil Judge restored. - For the first time the plaintiff stated in his evidence that what was not incorporated in the said consent terms was the agreement or acknowledgement that the suit house/structure was constructed by his late elder brother and himself and that it belonged to him. In fact, the plaintiff ought not to have been allowed to lead such evidence in the absence of such plea or particulars not being taken or given in the plaint. The plaintiff did not explain even if the said clause was not incorporated in the said consent terms as to how the other consent terms would be affected or were vitiated by fraud. Admittedly the plaintiff had no male issue and his only daughter was already settled and in the light of that it was agreed between the plaintiff and the defendant that the plaintiff would conduct the business of taverna on his own until he was able to conduct the same personally. This stipulation could stand independently even if the term which according to the plaintiff was agreed upon was not incorporated in the consent terms. The terms agreed upon could also not be said to be unfair to the plaintiff. Even in case it was agreed between the plaintiff and the defendant that the suit house was constructed by the plaintiff’s late brother and himself then the condition that the plaintiff would run it till such time he was able to conduct the business himself could not be tainted by any fraud as such. The consent terms were explained to the plaintiff by Advocate and not only that the Presiding Officer had asked the plaintiff whether he was aware of the contents of the said terms and he had answered in the affirmative. Although the plaintiff did not take his Advocate to the office of Advocate D’Souza at the time of drafting the consent terms because the plaintiff wanted to avoid payment of fees to his Advocate Kudchadkar the fact remains that before filing the said consent terms before the Court the plaintiff has met Advocate Kudchadkar on the ground floor and told him that they were going to settle the matter and Advocate Kudchadkar in turn had told him that they could settle the matter. It is also to be noted that earlier the plaintiff and the defendant had met on five to six occasions regarding settlement, as admitted by the plaintiff himself. The plaintiff earlier had filed an application to be registered as a mundcar in respect of the suit house which was dismissed and not only that, the plaintiff had another advocate who was dealing with another case of the plaintiff before the Revenue authorities. The plaintiff has not been able to provide any explanation as to why he did not show the terms of compromise before filing the same in Court to his Advocate Kudchadkar and chose to show the same to him only after the terms were filed and accepted by the Court. The Civil Judge had observed, and in Court’s view rightly, that all the witnesses examined by the plaintiff did not support his case. The Civil Judge accepted the statement of DW 2 Advocate D’Souza to the effect that the terms of settlement were fully explained to the party in Konkani and they were drafted as agreed by them. The Civil Judge also took note of the admission made by the plaintiff that the Presiding Officer had asked him whether he was aware of the contents of the consent terms and he had replied in the affirmative and therefore the allegation of the plaintiff that the consent decree was obtained by fraud did not bear any substance. The Civil Judge referred to Section 114 of the Evidence Act and in Court’s view rightly, and drew the presumption that judicial acts were regularly performed and therefore it could not be accepted that the consent terms were not explained to the plaintiff by the Presiding Officer. However, the Additional District Judge without even coming close to the evidence of the plaintiff on whom there was a heavy burden to prove that the said consent terms were vitiated by fraud proceeded to analyse the evidence of the defendant alone and reversed the judgment of the Civil Judge. At the cost of repetition it may be stated that the plaintiff did not at all challenge the other consent terms agreed to by the plaintiff and the defendant and which were filed before the Civil Judge and which would make no change even in case the term which the plaintiff says was not incorporated was incorporated in the said consent terms. The fact that a copy of the consent terms was not given to the plaintiff by the defendant so as to enable him to ascertain it contents would not go to prove that the terms agreed upon were as a result of a fraud practiced by the defendant considering that the terms were explained to the plaintiff, the plaintiff had the benefit of meeting his own advocate before filing the terms in the Court and then stating before the Civil Judge that the terms filed were as agreed upon. When the Presiding Officer records any compromise, this has to be treated as a judicial record made by him in the discharge of his judicial duties. As noted by the Court in the case of Keshav s/o Dattaram v. Yamunabai w/o Nagoba, 1986 (1) Bom CR 81, if such orders which are read and recorded by the Court are subject to challenge merely on the allegation, the sanctity of the ’records’ would be shaken, considering the evidence led by both the parties, the Civil Judge was justified in dismissing the suit filed by the plaintiff and the Additional District Judge even adverting to the evidence of the plaintiff on whom there was heavy burden to prove that the consent terms were the outcome of a fraud practiced by the defendant was wholly unjustified in reversing the decision of the Civil Judge. Question (b) therefore de serves to be answered in the affirmati ve and in favour of the defendant.
Civil Procedure Code, 1908 - Order XXIII, Rules 1 and 3-A Adjustment of suit Compromise. Recording of compromise by Presiding Officer is a judicial record. Challenging record on allegation not proper.
( 1 ) IN this defendants Second appeal, arising from R. C. S. No. 116/1986, two substantial questions of law require consideration, and they are as follows :- (a) Whether, in view of the clear mandate of Order XXIII, Rule 3-A and in view of the pronouncement of law in respect thereof by the Honble Supreme Court as well as by this Honble Court, a separate suit impugning the Consent decree on the ground that the same is not lawful is maintainable ? (b) Whether the impugned Judgment (in r. C. S. No. 116/86) is perverse being not based on the evidence on record ?to answer the said substantial questions of law, it is necessary to refer briefly to some facts.
( 2 ) THE parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit.
( 3 ) THE dispute between the plaintiff and the defendant who are related to one another in R. C. S. No. 62/78 was regarding a structure/taverna situated in Survey No. 15/2 of Costi village. As per the defendant, the said structure was utilized as a store-room but later on the same was let out to Govind Rama gaonkar, the brother of the plaintiff to run a taverna on payment of monthly rent of Rs. 10/ - which was paid for about two months and thereafter remained unpaid till about 21-9-77 when the said Govind R. Gaonkar expired and that after the death of Govind, the plaintiff entered the said structure without their permission and the defendant thereafter served a legal notice dated 19-11-77 directing him to vacate the same and thereafter filed r. C. S. No. 62/78 for eviction of the plaintiff. The case of the plaintiff in R. C. S. No. 62/78 was that the said structure was constructed by him and his late brother Govind Rama Gaonkar with the permission of Smt. Sanguemkar who owned the said property prior to its sale to the father of the defendant and that it was constructed about 30 years back and as such they had acquired right to the land whereon the said structure stood by virtue of continuous possession. The evidence of the defendant as plaintiff in R. C. S. No. 62/78 was recorded on 7-12-1981 and thereafter on 1-7-1986 both the parties filed terms of compromise and the learned Civil Judge S. D. at Quepem decreed the suit in terms of the compromise filed by both the parties. One of the terms of the said settlement was that the plaintiff would continue to conduct business of Taverna in the said structure until the time he was unable to conduct it personally.
( 4 ) THE plaintiff then filed r. C. S. No. 116/86 on 1-8-86 seeking a declaration that the decree dated 1-7-86 passed in R. C. S. No. 62/78 be declared void. This suit was contested by the defendant and by judgment/decree dated 29-11-88 the learned civil Judge J D. at Sanguem was pleased to dismiss the same However, the learned Addl. District Judge, Margao by his Judgment/order dated 13-4-98 was pleased to reverse the said judgment/decree and declare the said judgment and decree as void. The learned Addl. District judge directed the suit to proceed.
( 5 ) AS regards question (a) Shri. Sonak the learned counsel on behalf of the defendant has submitted that no separate suit was maintainable for setting aside the said compromise arrived at between the parties on the ground of alleged fraud in view of the bar of Rule 3-A, O. 23, C. P. C and if at all the plaintiff wanted the said Judgment/decree set aside, the plaintiff ought to have made an application in that very suit R 3-A of O. 23 c P. C. which reads as follows :-"3-A. 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 "
( 6 ) SHRI Sonak has placed reliance on the case of Anant Mahadeo Godbole Vs. Achut Ganesh Godbole and others, (AIR 1981 Bombay 357) and Banwari Lal Vs. Chando Devi (Smt.) (through LRs.) and another, (1993)1 SCC 581) while Shri. B dcosta, the learned Senior Counsel on behalf of the plaintiff, has placed reliance on the case of Jethalal C. Thakkar and other Vs. La
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