2010 Supreme(P&H) 1393

2010(2) LAW HERALD (P&H) 1325
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Alok Singh
RSA No.2051 of 1982
Ashok Kumar
v.
Jagjit Singh & Ors.
{Decided on 06/04/2010}

IMPORTANT POINT
Consent decree--Setting aside of--Subsequent suit for cancellation of decree or for declaration declaring decree passed in previous suit as null and void would lie only when plaintiff of the subsequent suit claims that impugned decree is outcome of fraud, misrepresentation played by opposite side on the plaintiff as well as on the Court.
Constructive res judicata--Definition of-Plea or defence ought to have taken not, taken cannot be permitted to be taken in subsequent suit.
Vexatious claims--Compensatory costs--Obtaining consent decree with understanding that same shall remain on paper only and shall not be acted upon--Both the parties misused process of law in obtaining the previous consent decree.
Vexatious claim--Compensatory cost--Court can impose compensatory cost if Court finds either claims or counter-claim or defence to be false or vexatious.

Headnote:(A) Civil Procedure Code, 1908, S.11--Civil Procedure Code, 1908, O.7 R.7--Estoppel--Res judicata--Relief to be specifically stated--No relief claimed in plaint seeking declaration declaring decree dated 14.6.72 null and void or seeking relief of cancelling decree dated 14.6.72--No Court fee paid by plaintiff for such relief--Decree dated 14.06.1972 was obtained by the plaintiff and defendant jointly with their respective consent--Plaintiff claiming that gift as well as decree was agreed upon between the parties to be paper transaction only means no fraud was played on the plaintiff in obtaining the decree--Plaintiff was party in the previous suit resulting in decree dated 14.6.1972--Court was having jurisdiction to pass decree dated 14.06.1972--Plaintiff once waived/abandoned her right in previous decree dated 14.6.1972 now cannot allege that since gift was neither in writing nor registered hence, decree dated 14.6.1972 recognizing oral gift is bad in law--Suit is barred by principal of estoppels, waiver and acquiesce--Plaintiff ought to have taken defence in a previous suit, which resulted in decree dated 14.6.1972, that alleged gift is not valid, no gift was ever made, and alleged gift now in the present suit plaintiff had not taken any defence in a previous suit rather consented to pass decree recognizing alleged gift plaintiff cannot challenge the decree dated 14.6.1972 on the grounds which ought to have been taken in previous suit is barred by principle of res judicata as provided in explanation IV of Section 11 CPC. (Para 20 & 21)

       (B) Civil Procedure Code, 1908, O.7 R.7--Civil Procedure Code, 1908, S.11 Explanation IV--Constructive Res-judicata--Relief to be specifically stated--Plaintiff has to state specifically the relief claimed either simply or in the alternative--Court can grant such general or other relief which is just and proper in the opinion of the Court in furtherance and to the extent of the relief claimed--However, ordinarily Court should not grant any relief which is beyond the scope of the relief claimed. (Para 18)

       (C) Civil Procedure Code, 1908, S.11, Explanation IV--Constructive Res judicata--Definition of-Plea or defence ought to have taken not, taken cannot be permitted to be taken in subsequent suit. (Para 21)

       (D) Civil Procedure Code, 1908, O.23 R.3--Civil Procedure Code, 1908, O.7 R.7--Consent Decree--Setting aside of--Ordinarily decree obtained with consent of the parties should not be declared null and void--No relief should ordinarily be granted by the Court without seeking specific relief by paying proper Court fee in a suit--Subsequent suit for cancellation of decree or for declaration declaring decree passed in previous suit as null and void would lie only when plaintiff of the subsequent suit claims that impugned decree is outcome of fraud, misrepresentation played by opposite side on the plaintiff as well as on the Court--Plaintiff is not claiming that consent decree was obtained by playing fraud either on the plaintiff or on the court or was obtained in the back of the plaintiff--Hence, plaintiff is not entitled for any relief against consent decree. (Para 22)

       (E) Civil Procedure Code, 1908, S.35-A--Vexatious claims--Compensatory costs--Obtaining consent decree with understanding that same shall remain on paper only and shall not be acted upon seems to be for ulterior motive--There cannot be any bonafide intention in obtaining consent decree with understanding that same shall not be acted upon--Both the parties misused process of law in obtaining the previous consent decree--Both parties are guilty of playing fraud with the State exchequer by not paying stamp duty or registration fee on the alleged gift which was subject matter of consent decree--In first round of litigation both the parties obtained decree and now plaintiff is challenging the same decree in the amounts to abuse of process or law--Exemplary cost of Rs.50,000/- each is imposed on the plaintiffs as well as on the defendants separately. (Para 23 & 24)

       (F) Civil Procedure Code, 1908, S.35-A--Vexatious claim--Compensatory cost--Court can impose compensatory cost if Court finds either claims or counter-claim or defence to be false or vexatious--Abuse of process of law, wastage of Court’s time which otherwise is meant for genuine litigants, who are waiting for years to get result from the courts, is also a ground to impose compensatory cost. (Para 24)