The suit was already
withdrawn as far as regards Defendant No.1 was
concerned and application Exhibit 19 filed by the
Plaintiff did not seek to withdraw the said
purshis Exhibit 17. The compromise recorded
existence of facts regarding Will in favour of
Defendant No.2 and that due to relationship
Defendant No.2 has agreed to pay amount and to
compromise the matter. The contents do not show
that it is unlawful compromise. When it was
prepared and Plaintiff discussed it with her
daughters and Advocate and herself tendered it
before Court and admitted contents read over
before Court, subsequent retracting (before formal
Order below Exhibit 1 decreeing the suit) cannot
be accepted. Proceedings before Court are solemn
proceedings and after the compromise is duly
recorded, retracting vide application like Exhibit
19 claiming that it was not read over, is
contemptuous. In evidence she admitted that Court
asked her about the terms of compromise and she
admitted contents. Trial Court has thus properly
rejected subsequent retracting and decreed suit as
compromised.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL REVISION APPLICATION NO.131 OF 2012
Mandrawati w/o Gangadhar Kshirsagar,
VERSUS
Maruti s/o Arjun Kshirsagar,
CORAM: A.I.S. CHEEMA, J.
DATE OF PRONOUNCING JUDGMENT : 25TH FEBRUARY, 2014.
Citation; 2014(3) ALLMR 684 Bom
Heard counsel for both sides. The
1.
Revision Application has been admitted and finally
heard with consent of learned counsel for both
sides.
2.
The Applicant is original Plaintiff.
Respondents are legal heirs of original Defendant
No.1 Maruti. Respondent No.1C is Legal Heir of
Defendant No.1 and also original Defendant No.2. I
will refer to the Applicant as Plaintiff and
Respondent No.1C as Defendant.
The Plaintiff filed Regular Civil Suit
3.
No.151 of 2007 for partition against her brother
Defendant Maruti and his son Defendant No.2
Datta. According to the ApplicantPlaintiff,
Defendants prepared a compromise deed and
compelled the Plaintiff for her signature on the
compromise and the same was filed in the trial
Court of Civil Judge, Senior Division, Latur at
Exhibit 16 on 2nd January, 2008. She did not give
free consent to the said compromise. The same was
obtained by force. Defendants succeeded in getting
decree passed by the trial Court on 7th February,
2008. The same is illegal and improper. Plaintiff
had filed Civil Revision Application No.75 of 2008
in the High Court to quash the said order
recording compromise on dated 7th February, 2008.
By Judgment dated 23rd June, 2009 High Court
quashed and set aside the impugned order of the
trial Court and remanded the matter directing the
trial Court to hear the parties afresh on the
point as to whether really there was a compromise
between the parties and then to pass appropriate
orders.
After the matter was remanded, parties
led oral evidence regarding the alleged
compromise. Plaintiff brought evidence to claim
that the compromise was not willful and the same
deserved to be discarded. Defendant brought
evidence to prove that there was wilful and lawful
compromise. After hearing the parties, the trial
Court vide order dated 21st December, 2011 held
that the allegations of fraud and other grounds
are vague and that the compromise which was
recorded was by free will and consent and there
was no coercion. Accordingly compromise was taken
on record and decree passed vide orders dated 21st
December, 2011. Thus, the present Revision has
been filed.
4.
I have heard counsel for both sides. The
learned counsel for ApplicantPlaintiff has
submitted as follows:
The compromise which was tendered in the
Court had been obtained by fraud by the Defendant
No.2. Plaintiff filed application that the
compromise was fraudulent. The compromise
recorded, was only between the Plaintiff and
Defendant No.2 and Defendant No.1 was not party to
the same. On the same day when the compromise
Exhibit 16 was tendered, the Advocate Mr. Sonawane
of Plaintiff filed purshis Exhibit 17 withdrawing
the suit against Defendant No.1 Maruti. On 2nd
January, 2008, order below Exhibit 16 was passed
by the Court, the order remained to be passed
below Exhibit 1 as on 2nd January, 2008 matter had
been taken on board. Before the matter came up on
next date, the Plaintiff had filed an application
not to record the compromise. Such application
Exhibit 19 was filed by the Plaintiff on 14th
January, 2008 retracting the earlier compromise.
Reliance was placed by Plaintiff on the
.
matter of Jaywantraj Punamiya and others vs. H.
Chokshi& Co. Pvt. Ltd., reported in (1997) 10
Supreme Court Cases, Page 193 to submit that in
that matter there was contingent compromise
appointing third person for disposal of the flats
in dispute. Court declined to record the said
compromise. This was upheld by the Hon'ble Supreme
Court. Reliance is also placed on the matter of
Santosh vs. Jagat Ram and another, reported in
(2010) 3 Supreme Court Cases, Page 251, where, in
view of the facts of that matter and on
appreciating the evidence concerned, Hon'ble
Supreme Court set aside the partition decree
fraudulently obtained in subsequent suit filed by
appellant therein. Reference was made to the
matter of Arjan Singh vs. Punit Ahluwalia and
others, reported in 2009(2) Mh. L.J. Page 13. In
that matter for one property there were two suits
against one Dr. Bawa for specific performance and
in the subsequent suit Dr. Bawa compromised. It
was found that such compromise decree did not
satisfy requirement of law and same was not
binding on the Plaintiff of the earlier suit, as
the same would be hit by the doctrine of lis
pendens.
Per contra, learned counsel for
5.
RespondentDefendant submitted as under:
The Plaintiff had compromised the suit
with Defendant No.2 and withdrew the suit against
Defendant No.1. The compromise tendered as well as
the withdrawal application, both, had signatures
of Plaintiff. The Defendant No.2 not merely joined
the compromise but also acted upon the same by
depositing the money in the Bank. Defendant had
called Plaintiff and her daughters to receive the
money as per the compromise. The daughter came and
so from the account of Defendant, money was
transferred to the daughter Asha to the extent of
Rs.70,000(Rupees Seventy Thousand) and the same
was put in fixed deposit, which is on record. Asha
subsequently encashed the fixed deposit premature.
The orders passed in Revision were merely to
confirm if in reality the compromise was there.
The evidence on record shows that the Plaintiff
was aware of the compromise which was drafted and
shared by her with her Advocate Mr. Sonawane and
she had discussed the same with her daughters and
was aware of the contents and Plaintiff herself
had tendered the compromise in the Court which
came to be recorded, but somehow, subsequently she
has tried to retract. Defendant maintained account
in Bank so that Plaintiff could be paid any moment
and as soon as present impugned order was passed
on 21st December, 2011, Defendant deposited the
remaining money of compromise in the Court on 22nd
December, 2011 itself. The impugned order dated
21st December, 2011 of the Court after recording
evidence regarding the compromise, as passed by
the trial Court is properly reasoned order and in
Revision, it would not be appropriate to disturb
the findings of facts as same are legally tenable.
The Revision is not maintainable as decree on the
basis of compromise has been passed. The Revision
deserves to be dismissed.
6.
In reply, learned counsel for the
Plaintiff submitted that the present Revision is
maintainable as under Section 96(3) of the Code of
Civil Procedure, appeal would not lie as the
decree concerned would be treated as passed by
consent of parties.
7.
The document of compromise Exhibit 16
filed in the suit, in Para 1 referred to the facts
of the matter and that the original owner was
Arjun Kshirsagar who had by Will given the
property to Defendant No.2 Datta and so Plaintiff
accepted that she did not have right in the same.
However, (in Para 2 it is mentioned) she has two
daughters and is old and due to the relations,
Defendant No.2 agreed to pay Rs.2,10,000(Rupees
Two Lakh Ten Thousand) to the Plaintiff within
next six months, out of which Rs.70,000/(Rupees
Seventy Thousand) each would be paid to Plaintiff
and to her two daughters. Compromise with such
contents was tendered before the Civil Judge,
Senior Division, Latur on 2nd January, 2008 and he
passed orders below the same to the effect that,
the Plaintiff and Defendant No.2 are present –
they verified and admitted contents and compromise
is read over to them, and hence verified. Trial
Court record shows that on same day Advocate of
Plaintiff Mr. Sonawane filed purshis Exhibit 17
mentioning that as matter is compromised between
Plaintiff and Defendant No.2, therefore the
Plaintiff does not want to proceed against
Defendant No.1. The purshis was signed by
Plaintiff also and the Court read and recorded the
same.
8.
It appears that on 14th January, 2008
Plaintiff engaged another Advocate Mr. D.K. Jadhav
and filed application Exhibit 19 claiming that a
so said compromise has been filed but the
compromise was not explained or read over to the
Plaintiff and that she has been cheated. Plaintiff
was not accepting the Will Deed also. The market
price of the property was not considered and
Defendant No.2 on his own, put the figure of Rs.
2,10,000/ (Rupees Two Lakh Ten Thousand) and
Plaintiff had no guarantee that Defendant No.2
would pay the amount. The compromise should not be
accepted and suit should be continued.
.
On such application being filed, the
Civil Judge, Senior Division, passed following
order on 7th February, 2008:
"1. The suit for partition and
separate possession by sister
against brother and brother's son.
The plaintiff and defendant no.2
filed compromise and plaintiff filed
withdrawal pursis against defendant
no.1 vide exh.16 & 17 respectively.
I have read over the contents of
compromise to plaintiff and
defendant no.2 to which they
admitted, hence compromise is
verified and order came to be
passed. However, the final order was
deferred because on the date of
filing of the compromise, file was
taken on board as it was fixed on
8.1.2008. On 8.1.2008 holiday
declared and hence file was fixed on
14.1.2008 for order. On 14.1.2008
present application came to be filed
on the allegations that the contents
of compromise deed were not read
over and explained to the plaintiff
and she was cheated. So also she do
not admit will deed. However, the
contention is incorrect because I
have personally read over and
explained the contents to her and
she admitted it to be true and
correct and then compromise was
verified. The second contention
raised in the application is that
she have no guarantee as to whether
or not the defendant no.2 will pay
the amount of compromise i.e. Rs.
2,10,000/ to her and hence the
compromise should not be accepted.
2. Say filed by defendant No.2
below exh.22 and resisted the
application. I heard advocates for
the parties.
3. After verification of the
compromise the only role of the
Court was to pass formal order and
in such circumstances the contention
of the plaintiff cannot be accepted
now. The apprehension that the
defendant no.2 will not pay Rs.
Further Order was passed on Exhibit 1 and
9.
2,10,000/ is of no consequences
because after passing final order
the decree would be drawn in terms
of the compromise and plaintiff have
every right to get it executed for
which the Court will certainly help
her for recovering the amount along
with incidental charges. The
allegation of the cheating is vague
hence cannot be accepted. As such
the application being devoid of
merit is rejected."
Suit was decreed in terms of compromise. When the
Civil Revision Application No.75 of 2008 was
carried over to this Court by the Plaintiff, the
above order of the trial Court was quashed and set
aside as it was observed that formalities required
to be followed in such matters had been given go
bye. The order was quashed and set aside and
matter was remanded to the trial Court to hear
afresh on the point as to, whether in reality a
compromise was entered into between the parties to
the proceedings and then to pass appropriate
orders.
The impugned order dated 21st December,
10.
2011, which is now before this Court, shows that
the trial Court has given opportunity to both
sides to lead evidence and discussed the evidence
of each of the witnesses examined. Material is,
whether the compromise Exhibit 16 which was filed
and recorded by the Court was out of free will or
not. Learned counsel for the RespondentDefendant
has taken me through the evidence of Plaintiff
herself, whose crossexamination shows that she is
aware of the worldly affairs. She can read and
write Marathi language (The compromise Exhibit 16
is also in Marathi language). Her cross
examination shows that she has transacted earlier
with the Bank for taking loan and regarding
purchase of plot and that she had negotiated for
selling the plot. Thus, learned counsel for
Respondent submitted that Plaintiff is conversant
with handling documents. Crossexamination of
Plaintiff has been referred by the learned counsel
further to point out that Plaintiff was attending
the Court on every hearing and she had herself
provided information to her Advocate. There were
talks between her and Defendant No.2 about
compromise which talks were going on for one year.
Her daughter Soni was acquainted with the talks.
Plaintiff admitted in the crossexamination that
the compromise deed was drafted 23 days before
the same was filed in the Court and she had given
copy of the compromise to her Advocate Mr.
Sonawane also. Her crossexamination reveals that
she and her Advocate Mr. Sonawane had discussed
the terms of the compromise and she herself had
filed compromise before the Court. She admitted
that the Court did ask her about the terms of
compromise and she did admit the contents of the
compromise. She admitted that it was mentioned in
the compromise that the Defendant No.2 will pay
Rs.2,10,000/ (Rupees Two Lakh Ten Thosuand) to
her within six months. She admitted that according
to the compromise, Defendant No.2 had deposited
Rs.2,10,000/ (Rupees Two Lakh Ten Thosuand) in
the Bank. She stated that she does not know if her
daughter Asha had already withdrawn Rs.70,000/
(Rupees Seventy Thousand) from the Bank. She
accepted that she does not have any dispute with
her daughter Asha. In the crossexamination, at
one place she stated that it is not true that she
knowingly filed compromise in the Court but again
volunteered that she had knowingly filed
compromise in the Court.
Learned counsel for Respondent referred
to the above evidence of Plaintiff to submit that
the crossexamination itself shows that the
Plaintiff was totally aware of the contents of
the compromise and had voluntarily filed the same
and there was no coercion or pressure on her. She
had discussed the contents with her own Advocate
and also admitted that the Court did explain the
terms of the compromise to her and she accepted
the same. According to the learned counsel, when
this is so, there does not remain anything else.
The Court had properly verified and recorded the
11.
compromise.
Learned counsel for Respondent further
referred to the evidence of Asha, the daughter of
Plaintiff to who she herself examined as witness
No.5. He submitted that although the part of
affidavit as examinationinchief tried to put
blame on the Defendant, still the cross
examination of Asha also goes to show that the
compromise was voluntary and duly executed. The
learned counsel referred to the crossexamination
of Asha where she stated that in the suit there
was compromise between her mother and Defendants
and that the concerned compromise was discussed
between the sisters and the mother i.e. Plaintiff
and it was recorded by consent. Asha also deposed
that after the compromise, her mother, i.e.
Plaintiff filed the compromise in the Court and
that the compromise was as per what was decided
between the parties. She also admitted that the
contents of the compromise were read by the
sisters and Plaintiff. Her evidence shows that
Defendant had sent letter on 21st June, 2008 and
called them to Kedarnath Bank, however she alone
went to the Bank and Defendant transferred Rs.
70,000/ (Rupees Seventy Thousand) in term deposit
in her name. Concerned form had been filled up and
she had signed the same. She admitted that on 16th
January, 2009 she again went to the Bank and
opened her savings bank account and from the term
deposit, she got the money transferred to savings
account and she withdrew the money for using the
same for her marriage.
.
Learned counsel referred to the above
evidence of Asha to argue that if the evidence of
Plaintiff and her daughter Asha are read together,
it is quite clear that there is no substance in
the grievance being made by the Plaintiff after
the compromise was recorded by the Court on 2nd
January, 2008, that the same was not willful or
that the same was product of cheating. He
submitted that Asha is educated upto 12th
Standard and Plaintiff had no dispute with her and
there is no reason to disbelieve witness of
Plaintiff herself.
Learned counsel for Respondent also
12.
referred to the evidence of Advocate Mr. Sunil
Sonawane who was the Advocate of Plaintiff but
called for evidence by Defendants. According to
the learned counsel, the evidence of the Advocate
also shows that the Plaintiff was explained the
contents and she was aware as to what she was
doing. According to the learned counsel, there is
no reason to disbelieve the Advocate who has been
practicing since 1990. It is submitted by the
learned counsel for RespondentDefendant that
Umakant Ramkisan, the witness called by the
Plaintiff from the Bank also has brought on record
the fact that the Defendant had kept Rs.2,10,000/
(Rupees Two Lakh Ten Thousand) in his account and
that the Defendant on 21st June, 2008 transferred
amount in term deposit in the name of daughter of
Plaintiff.
13.
I have gone through the reasonings
recorded by the trial Court while discussing the
evidence. Learned counsel for ApplicantPlaintiff
submitted that the observations of the trial Court
that Defendant had kept Rs.2,10,000/ (Rupees Two
Lakh Ten Thousand) in fixed deposit in the name of
Plaintiff and her two daughters was not correct if
the evidence of the employee from the Bank is
perused. However, this is not material for the
purpose of deciding the present matter. In the
present matter, material is, whether the Plaintiff
who had filed compromise herself, had understood
the same and if it was filed by free will. If the
evidence as pointed out by the learned counsel for
Respondents is perused and the reasonings of the
trial Court are considered, I do not find there is
anything illegal or irregular in the findings
arrived at by the trial Court that indeed
compromise between the parties had taken place as
is recorded in Exhibit 16 and that the same was
out of free will and consent and there was no
coercion or undue influence on the Plaintiff. The
same was duly verified, admitted and recorded
before Court. I do not find any reason to differ
from the findings arrived at by the Civil Judge,
Senior Division, Latur.
Rulings relied on by the learned counsel
14.
for ApplicantPlaintiff are based on their own
facts. Present matter has to be decided on the
basis of its own facts. The suit was already
withdrawn as far as regards Defendant No.1 was
concerned and application Exhibit 19 filed by the
Plaintiff did not seek to withdraw the said
purshis Exhibit 17. The compromise recorded
existence of facts regarding Will in favour of
Defendant No.2 and that due to relationship
Defendant No.2 has agreed to pay amount and to
compromise the matter. The contents do not show
that it is unlawful compromise. When it was
prepared and Plaintiff discussed it with her
daughters and Advocate and herself tendered it
before Court and admitted contents read over
before Court, subsequent retracting (before formal
Order below Exhibit 1 decreeing the suit) cannot
be accepted. Proceedings before Court are solemn
proceedings and after the compromise is duly
recorded, retracting vide application like Exhibit
19 claiming that it was not read over, is
contemptuous. In evidence she admitted that Court
asked her about the terms of compromise and she
admitted contents. Trial Court has thus properly
rejected subsequent retracting and decreed suit as
compromised. The impugned order dated 21st
December, 2011 in Regular Civil Suit No.151 of
2007 passed by Civil Judge, Senior Division, Latur
does not call for any interference and the
directions to record the compromise and decree the
suit need not be interfered with.
There is no substance in the Civil
15.
Revision Application. The Civil Revision
Application is rejected with costs.
[A.I.S. CHEEMA, J.]
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