HIGH COURT OF JAMMU AND KASHMIR AT JAMMU C RevNo. 11 OF20111. Arihant Jain 2. Arun Jain Petitioners Guninder Pushp Jain Respondent !Mr. Rajneesh Oswal, Advocate ^Mr. L. K. Sharma, Sr. Advocate with Mr. Rahul Sharma, Advocate Honble Mr. Justice N. Paul Vasanthakumar, Chief Justice, Date:
13. 03.2015 :
JUDGMENT
:
1. This civil revision petition is filed against order dated 19.10.2010 whereby the learned 2nd Additional District Judge, Jammu has dismissed the application for recalling the order dated 15.09.2006 and restoring the suit to its original number.
2. The brief facts necessary for disposal of this revision are as follows:- (a) The mother of the petitioners, namely, Smt. Mahimawati Jain had filed a suit for declaration to the effect that decree passed in Civil Suit No. 21 dated 10.01.1998 by Sub Judge (C.J.M), Jammu with regard to house No. 74 A/B, Gandhi Nagar, Jammu is null and void, inoperative and not binding upon the rights of the plaintiff therein with a consequential prayer for permanent prohibitory injunction, restraining the defendant therein from alienating/transferring/creating any encumbrance with regard to the said suit property with a further relief of partition by metes and bounds of moveable as well as immoveable property owned by the deceased Shri Yash Pal Jain. (b) The said suit was pending for evidence of the defendant, i.e. respondent in this revision, and at that stage the respondent proposed a compromise, stating that the respondent can retain the moveable property in the locker and Plot No. 74 A/D Gandhi Nagar was to be partitioned in two equal parts, one part was to be taken by the petitioners and the other part was to be taken by the respondent. The petitioners were to relinquish their right in the 2nd floor of the building and in lieu thereof a sum of Rs. 10 lacs was to be given to the petitioners by the respondent. The petitioners having not doubted the bonafide of the respondent and believing the said proposal withdrew the suit on 15.09.2006. However, the agreement was not signed by the parties and a sum of Rs. 10 lacs was not given to the petitioners. The respondent thereafter did not turn for executing the agreement and avoided the payment of said amount of Rs. 10 lacs. (c) When the petitioners insisted to execute the deed of agreement, which was orally agreed, the respondent avoided. They having been misled by the respondent, the petitioners filed an application before the Court of 2nd Additional District Judge, Jammu for recalling the order dated 15.09.2006 and praying for restoration of the suit on its file. (d) In the said application, respondent filed his objections wherein it was admitted that the dispute was compromised however, the terms of the compromise were not mentioned in the said objections. Since the agreed compromise was not acted upon, the petitioners pressed for recalling the order withdrawing the suit and restoration of the suit, which was rejected by the trial court holding that the suit was withdrawn as the matter in issue was settled based on the compromise entered and on the basis of the submissions made by the respective counsel and also on the ground that the application was filed for recalling the order and for restoration after two years and three months.
3. The said order is challenged by the petitioners by contending that, respondent having admitted that there was a compromise and without disclosing the terms of the compromise, unless the agreed terms are complied with, the cause of action for the suit still survives and withdrawal of the suit based on the proposed agreement on the part of the respondent is fraudulent, and therefore the order withdrawing the suit is bound to be recalled and the suit has to be restored for contest. In support of said contention learned counsel for the petitioners has relied on a judgment of the Honble the Supreme Court reported in 2006 (2) Supreme 380 (Jet Plywood Private Limited and anr. Vs. Madhukar Nowlakha & ors.). Relying upon the said judgment learned counsel argued that the order of the trial court is bound to be set aside as the petitioners have been misled by the respondent which is a fraudulent activity and the civil revision has to be allowed.
4. The said contention was opposed by learned counsel for the respondent by contending that no settlement deed/written agreement was entered into, seeking enforcement of the settlement and the petitioners having reported that the suit was settled out of court, there is a presumption that everything was settled before withdrawal of the suit and therefore the order of the learned trial court is just and proper.
5. I have considered the rival submissions. It is not in dispute that the suit was vehemently contested by the deceased plaintiff and the respondent and at the stage of recording of evidence of the defendant, there was a compromise talk and the same is admitted by the respondent in his objections filed before the court below. The respondent though admitted the compromise, but the terms of compromise has not been disclosed, which shows withholding information before the Court for arriving at a just decision. The delay in filing the application has occurred as the petitioners believed the respondent and they were under an impression that respondent will honour the commitment by paying the alleged agreed amount.
6. Similar issue was considered by Honble the Supreme Court in Jet Plywoods (Supra) wherein the restoration ordered by the High Court in exercise of its inherent powers under Section 151 of the Code of Civil Procedure by noticing the fact that by mistake the petitioner had withdrawn the suit, the court would not be powerless to set aside the order and restore the suit. The said judgment of Honble the Supreme Court fully supports the case of petitioners.
7. In the decision reported in (1990) 1 SCC189( Sri Dadu Dayal Mahasabha vs Sukhdev Arya And Another) the Honble Supreme Court held that in exercise of inherent powers under Section 151 of Code of Civil Procedure, the Court can vacate its own order obtained by fraud or misrepresentation, and the application made to recall the withdrawal order is maintainable, and that the High Court in exercise of revisional jurisdiction can interfere in such cases.
8. The trial Court having not considered the issue regarding the admitted compromise and there was any fraud played by the respondent, which induced the plaintiffs in the suit to withdraw the suit, the said withdrawal order passed cannot be sustained.
9. In fine, the order of the Court below is set aside and the matter is remitted back to the Court below to consider the application filed by the petitioners afresh and pass orders within a period of eight weeks from the date of receipt of copy of this order. No costs. The connected miscellaneous petition is also closed. (N. Paul Vasanthakumar) Chief Justice Jammu 13.03.2015 Anil Raina, Secy