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2010 Supreme(MP) 621
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR (JABALPUR BENCH)
Abhay M. Naik, J.
Appellants: Krishna Gopal and Ors.
Vs.
Respondent: Pushpa Devi and Ors.
Civil Revision 40 of 2010
Decided On: 18.08.2010
Headnote:(1) Civil P.C., 1908 -- O.9 R. 13 -- compromise made in Lok Adalat on behalf of the party without her knowledge on the basis of power of attorney not signed by her – amounts to fraud -- decree obtained on the basis of such compromise -- shall be treated as an ex-parte decree -- application to dismiss such a decree is maintainable.
Held: Thus, there is absolute no iota on record to hold that the alleged compromise was made in the presence of Ratan Bai or she was aware of it. There is no iota to further hold that the alleged compromise was with the consent of Ratari Bai or the same was ever made known to her. In the application under Order IX rule 13 CPC, Ratan Bai has clearly stated, which has been substantiated in her statement also, that Omprakash was never adopted by Deenanath, the deceased husband of Ratan Bai. Entire house property was owned by Deenanath alone which was inherited by his widow. Omprakash or his legal heirs i.e. defendants No.1 to 4 have no right, title or interest in it but for the alleged compromise. The result of the alleged compromise and hence, of the judgment and decree impugned under Order IX rule 13 CPC, is that Ratan Bai would be defrauded and would be deprived of her immovable house property. (2007)4 SCC 221, (2007)7 SCC 482 and (1993) 1 SCC 581 followed. 1993 MPLJ 1005 relied on. [Para 16
(2) Res-judicata -- objection raised about inapplicability of application moved for setting aside ex-parte decree -- was overruled even by High Court -- consequently said application was allowed -- raising such an objection again -- is abuse of process of law and barred by the principle of res-judicata -- revision dismissed with exemplary cost of Rs.10,000/-. (2005)4 SCC 120 followed. [Para 14
(3) Civil P.C., 1908 -- S.115 -- scope of revision -- is quite limited -- no error, jurisdictional or otherwise, found in the judgment of Court below -- revision dismissed. (2000) 10 SCC 38 and (2000)8 SCC 491 followed. [Para 17
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vfHkfu/kkZfjr % blfy,] vfHkys[k ij ;g vfHkfu/kkZfjr djus ds fy, vkR;afrd :i ls dksbZ fcanq ugha gS fd vfHkdfFkr le>kSrk jru ckbZ dh mifLFkfr esa fd;k x;k Fkk ;k mls bldh tkudkjh FkhA vfrfjDr :i ls ;g vfHkfu/kkZfjr djus ds fy, dksbZ fcanq ugha gS fd vfHkdfFkr le>kSrk jru ckbZ dh lgefr ls Fkk ;k mls dHkh bldh tkudkjh nh xbZ FkhA flfoy izfdz;k lafgrk ds vkns‘k 9 fu;e 13 ds v/khu vkosnu esa jru ckbZ us Li"V :i ls dgk gS ftls mlds dFku esa fl) Hkh fd;k x;k gS fd vkseizdk‘k jru ckbZ ds e`rd ifr nhukukFk }kjk dHkh nRrd xzg.k ugha fd;k x;kA laiw.kZ x`g laifRr vdsys nhukukFk ds LokfeRo dh Fkh tks mldh fo/kok dks fojklr esa feyhA vkseizdk‘k ;k mlds fof/kd okfjlksa vFkkZr~ izfroknh dz- 1 ls 4 dk blesa vfHkdfFkr le>kSrs ds flok, dksb vf/kdkj] gd ;k fgr ugha gSA vfHkdfFkr le>kSrs dk rFkk blfy, flfoy izfdz;k lafgrk ds vkns‘k 9 fu;e 13 ds v/khu vkf{kIr fu.kZ; rFkk fMdzh dk ifj.kke ;g gS fd jru ckbZ ls diV fd;k x;k rFkk mls viuh LFkkoj x`g laifRr ls oafpr fd;k x;kA ¼2007½ 4 ,l lh lh 221] ¼2007½ 7 ,l lh lh 482 rFkk ¼1993½ 1 ,l lh lh 581 vuqlfjrA 1993 ,e ih ,y ts 1005 voyafcrA
¼iSjk 16½
¼2½ iwoZ U;k; & ,di{kh; fMdzh vikLr djus ds fy, fd, x, vkosnu dh viz;ksT;rk ds ckjs esa mBkbZ xbZ vkifRrRr & mPp U;k;ky; }kjk Hkh ukeatwj & ifj.kkeLo:i mDr vkosnu eatwj fd;k x;k & iqu% ,slh vkifRrRr mBkuk & fof/k dh izfdz;k dk nq:i;ksx gS rFkk iwoZ U;k; ds fl)kar }kjk vftZr gS & iqujh{k.k :- 10]000@& dh vuqdj.kh; dher lfgr [kkfjtA ¼2005½4 l lh lh 120 vuqlfjrA
¼iSjk 14½
¼3½ flfoy izfdz;k lafgrk] 1908 & /kkjk 115 & iqujh{k.k dk foLrkj & vR;ar lhfer gS & fupys U;k;ky; ds fu.kZ; esa vf/kdkfjrk dh ;k vU;Fkk dksbZ xyrh ugha ikbZ xbZ & iqujh{k.k [kkfjtA ¼2000½10 ,l lh lh 3 rFkk ¼2000½8 ,l lh lh 491 vuqlfjrA
¼iSjk 17½
Abhay M. Naik, J.
1. This Civil Revision has been preferred by the plaintiffs against the impugned order dated 20.03.2010 passed by the Additional District Judge, Seondha, District Datia (M.P.) in M.J.C. No. 3/05 setting aside thereby ex-parte judgment and decree dated 26.06.2005 passed in Civil Suit 6A/04 by the Court of Additional District Judge, Seondha, District Datia in Lok-Adalat.
2. Natural pedigree of the parties seems to be important which is being reproduced below:
Balram ___________________________|__________________________ | | | deenanath (D) Bhagwandas (D) Chhotelal (D) | | | Ratanbai (wife) Ramlali (wife) (D)| Dhankunwa | (wife) (D) Ramkumar (D) | ___________|________ | | Omprakash (D) | | | | Krishnagopal shpadevi (wife) | | _______________________ | | | Govind Ranjeet Dinesh [D= Deceased]
Original plaintiffs, namely, Krishnagopal and Dhankunwar instituted a suit for declaration of title and perpetual injunction, mainly, with the allegations that there was no male issue to Deenanath, therefore, he adopted Omprakash as his son during his lifetime. Defendant No. 1 is the widow of Omprakash whereas defendants No. 2 to 4 are sons of Omprakash from defendant No. 1. Bhagwandas had separated himself about 50 years back. Chhotelal and Deenanath continued as joint family members. A partition took place between Chhotelal and Deenanath. Red coloured portion as shown in the plaint map was allotted to Deenanath whereas green coloured portion was allotted to Chhotelal. Deenanath died in the year 1984 whereas Omprakash died in the year 1986. Entire suit house was recorded in the name of Deenanath because he was the eldest brother. After the death of Deenanath, name of defendant/respondent No. 5 was entered in his place being widow. Defendants No. 1 and 5 collusively executed a registered partition deed wherein green coloured portion is shown to have been allotted to defendant/respondent No. 5. It is alleged that the said portion was already allotted to Chhotelal and the defendants have no right to interfere in it. Accordingly, a suit for declaration in respect of title and possession was instituted. Decree for perpetual injunction against interference in possession was also sought.
3. On 17.01.05, written statement on behalf of the defendants was submitted. It is pertinent to note that the written statement on behalf of defendant/respondent No. 5 was signed by Power of Attorney Govindprasad who happened to be the son of Omprakash and Pushpadevi and the same was not signed by defendant/respondent No. 5 personally.
4. On 26.06.05, an application under Order XXIII Rule 3 of Code of Civil Procedure was submitted stating therein that plaintiffs claim may be accepted and defendants have no objection to it. Accordingly, a prayer was made for pronouncement of judgment and decree in accordance with the said compromise. It is pertinent to note that compromise petition did not contain the signatures of defendant/respondent No. 5 instead, it was signed on her behalf by power of attorney Govindprasad. In support of the compromise, statement of Govindprasad was recorded by the Lok-Adalat. His mother and other brothers also deposed in favour of compromise which was accepted by the Court of Additional District Judge, Seondha, District Datia (M.P.) in Lok Adalat. Accordingly, judgment on the basis of compromise was pronounced by the Lok Adalat on the same day i.e. on 26.06.05 declaring thereby that the plaintiffs are the owners of the disputed house i.e. [Green Coloured Portion] and defendants were declared owners of the remaining house. A decree was also framed in accordance with the said judgment on the same day.
5. On 29.07.05, defendant/respondent No. 5 submitted an application under Order IX Rule 13 CPC with allegations that she was threatened on 18.07.05 by plaintiffs that the disputed house will be entered in their names in the record of the Municipal Council, Seondha. On collecting information, she came to know about fraud and collusio
