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TMI Blog1990 (10) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a view that the application for setting aside the compromise decree dated 22nd May 1985 at the instance of the petitioner who was not a party in Original suit No. 3 of 1985, was not maintainable under 0.9 R. 11 read with S. 151 of the Code of Civil Procedure. 2. At the very out set it may be stated that the Courts below have held that in the circumstances of the case the appropriate remedy for the petitioner is by way of filing a regular suit in Civil Court, which the petitioner has already filed and is pending in the court of Munsif Magistrate, Mirzapur. 3. The controversy in the writ petition is very short as to whether in the circumstances of the present case the petitioner could have sought relief, for setting aside the compromise decree entered into between Nagarmal (petitioner's husband) and Smt, Para Devi, in respect of the shop in dispute, of which the petitioner claimed the ownership on the ground that the compromise decree has been obtained by practising fraud on the court, in an application under O.9, R. 13 read with S. 151 of the Code of Civil Procedure or the Courts below committed no error in holding that on the facts of the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forged and Nagarmal, infact, was not a party to the said compromise. On coming to know of the said compromise decree the petitioner moved an application for setting aside ex parte decree under 0.9, R. 13 read with S. 151 of the Code of Civil Procedure. The said application has been rejected by the trial court as well as the appellate Court, as stated earlier. 7. In the counter-affidavit filed on behalf of Smt. Paradevi, respondent No. 3, some alarming facts have been disclosed, which were apparently not stated in the writ petition. In para '6' of the counter-affidavit it is stated that in the year 1981 Nagarmal, husband of the petitioner, moved an application dated 9th July 1981 under S. 30(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act') in the court of Munsif Magistrate, being Misc. case No. 145 of 1981 seeking permission to deposit rent, claiming and alleging himself as a tenant of the shop in dispute. Nagarmal was husband of the present petitioner who was sister's daughter of Bansidhar (husband of respondent No. 3). Nagarmal, as such was a close relative of respondent No. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication notice was again issued to Nagarmal fixing 22nd October 1988 for filing objection. On 22nd October 1988 the said Nagarmal appeared before the execution court and filed an application along with his affidavit and sought two months' further time to vacate the shop in dispute with the allegation that he is ready to vacate the shop in dispute as he is in search of other shop and, as and when, he gets some shop he will vacate the same, subsequent thereto Nagarmal by his application dated 22nd Dec, 1988 again sought time to file objection against the execution proceedings with the allegation that the earlier application dated 22nd October 1988 was filed by him without going through its contents. Hence he may be given time to file objection against the execution application. However, subsequent thereto Nagarmal did not file any objection to the said execution application but an application/objection under O.21, R.9 read with R. 100 of the Code of Civil Procedure was filed by Smt. Suraj Kumari the petitioner in the present case, who is Wife of the judgment debtor Nagarmal, which was registered as Misc. Case No. 54 of 1989. It further alleged in the said Application that Parad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para '9' of the rejoinder affidavit it has also been specifically stated that Nagarmal did not enter into compromise with Smt. Paradevi, as referred to in the counter-affidavit. However, paragraphs 12 and 13 of the rejoinder affidavit makes a interesting reading. In para 12 of the rejoinder affidavit it has been stated that to the best of the deponent's knowledge Nagarmal, never made any application seeking two months' time to vacate the shop in dispute. Likewise, in para '13' of the rejoinder affidavit it has been stated that the petitioner does not know whether or not Nagarmal made any objection to the execution application. All these paragraphs of the rejoinder affidavit have been sworn on personal knowledge by the deponent, namely Om Prakash, who is the son of both the petitioner and her husband Nagarmal. 11. Firstly the statement made by Sri Om Prakash in paragraphs 5 and 9 of the rejoinder affidavit that he has personal knowledge of the fact that Sri Nagarnial never made any application for depositing rent under S. 30 of the Act and did not make any request to Smt. Paradevi to permit him to use the said shop as a licensee for a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation. It should not be forgotten that the relationship of Smt. Suraj Kumari, the petitioner and Sri Nagarmal is that of wife and husband and there is no allegation that their relations are strained. 13. The court's proceedings atleast show that two compromise decrees were passed in favour of the respondent No. 3, to which Sri Nagarmal was a party. The respondent No. 3 has all the times waited for six years before taking any action for evicting aforesaid Nagarmal. The petitioner has chosen to come up before this Court to challenge the aforesaid proceedings on the ground of fraud and on the ground that she is the owner for the first time when compromise decree was put to execution. 14. At the very out set it is clear that the allegation of the petitioner is that the signatures of Sri Nagarmal has throughout been forged in the proceeding either in the court of Munsif Magistrate in Misc. Case NO. 145 of 1981, in proceedings under S. 30(1) of the Act or in Suit No. 3 of 1985, the best person to challenge these proceedings should have been Nagarmal himself, Nagarmal having not done so it is unbelieveable, that the present petitioner who is wife of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary jurisdiction should be exercised, not as a matter of right but it is a discretionary jurisdiction which should be not invoked merely by showing that the order is wrong, it must further be shown that it has resulted in miscarriage of justice (Banwari v.. State of U.P. 1974 ALJ 958. The High Court should also take care of the situation that this extraordinary jurisdiction should not be allowed to be misused and in cases where the High Court comes to the conclusion that the petitioner has approached the court with unclean hands, or has filed a writ petition stating facts, which are false, the petitioner must visit with penal consequences. This is necessary to check the misuse of this extraordinary jurisdiction so that every citizen should take a caution that extraordinary jurisdiction of the High Court, cannot be allowed to be misused. It is necessary that a person should approach the court under Art. 226 of the Constitution, stating all the facts in his knowledge, which are necessary for invoking the extraordinary jurisdiction of the court and should not try to mislead the court by making any false statement, or circumventing or concealing the necessary facts, if the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been done to him, on the other hand I have held the petitioner has invoked the jurisdiction of this Court with unclean hands. 22. The petitioner's second submission regarding the applicability of 0.23, R. 3-A of the Code of Civil Procedure is misconceived the provision is confined only to the parties to the suit. The said provision is not applicable to a stranger to the said compromise decree. A suit by stranger to set aside the compromise decree, which affects his rights is not barred by the said provision. Order 23, Rule 3-A of the Code of Civil Procedure cannot be read debtors its earlier provision of the same chapter. The said provision is only a part of the entire Chapter of Order 23 of the Code of Civil Procedure which prescribes provisions for withdrawal and adjustment of the suit. Order 23, Rule 3 of the Code of Civil Procedure provides for a situation where the parties have arrived at a compromise. Order 23, Rule 3 and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104 of 1976 read together, makes it clear that a party to the suit is debarred from filing suit for setting aside compromise decree on the ground of being unlawful. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. 27. Before dealing with the cases cited by both the sides it is necessary to examine as to what reasoning has been given by the Courts below for refusing to entertain the petitioner's application under 0.9, R. 13 read with S. 151 of the Code of Civil Procedure only then it will be fruitful to examine cases cited by the petitioner's counsel. The appellate Court in its judgment dated 28th November, 1989 impugned in the present writ petition has distinguished the case of this Court in the case of Suraj Deo v. Board of Revenue (supra) and have held that in the facts and circumstances of the present case the petitioner has filed a suit and the same is pending in the Court of Munsif Magistrate, Mirzapur. In these circumstances the trial Court was justified in directing the petitioner to pursue the remedy by means of a regular suit. The relevant portion of the impugned judgment is being quoted for convenience: In the case before the Allahabad High Court the decree was collusive in nature. The ex parte decree was obtained to effect the right of Gaon Sabha and cause inconvenience to the villagers in general as they were irrigating their field ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in refusing to entertain the application at the instance of the petitioner under 0.9, R. 13 read with S. 151 of the Code of Civil Procedure for setting aside a decree which was arrived at on the basis of compromise entered into between Smt. Paradevi and Sri Nagar-mal, petitioner's husband. The petitioner herself has chosen to seek her remedy by way of filing a suit even if it was permissible for the petitioner to invoke the inherent jurisdiction to set aside the said decree under S. 151 of the Code of Civil Procedure the Courts below committed no error in rejecting the said application. Ultimately it is the Court's discretion to exercise its inherent power under' S. 151 of the Code of Civil Procedure in appropriate cases, if in particular case the Court is satisfied that the petitioner has already resorted to his remedy of filing the suit for setting aside the decree alleged to have been obtained by some fraud the Court below has committed no mistake in refusing to entertain the application under 0.9, R, 13 read with S. 151 of the Code of Civil Procedure, made at the instance of the present petitioner. 29. Even otherwise the nature of the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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