Ramphal vs Satyawan and Another

Ram Chand Gupta, J.

C.M. No. 4971-CII of 2011

Application is allowed subject to all just objections.

Civil Revision No. 1206 of 2011

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 12.2.2011, Annexure P6, passed by learned Additional District Judge, Hisar, vide which application filed by Respondent No. 2 for withdrawal of the suit on the basis of which the appeal is pending before learned Additional District Judge, has been declined.

I have heard learned Counsel for the Petitioner and have gone through the whole record carefully including the impugned order passed by learned appellate Court.

Facts relevant for the decision of present revision petition are that the present suit was filed by Respondent No. 2 against present Petitioner for a decree for declaration to the effect that earlier judgment and decree dated 17.3.1993 passed in favour of present Petitioner and against her was a result of fraud. The suit filed by Respondent No. 2-Plaintiff was decreed in her favour and against the present Petitioner and it was held that earlier judgment and decree dated 17.3.1993 regarding land in dispute in favour of present Petitioner was based upon fraud and hence, the decree was set aside. After passing of judgment and decree in favour of Respondent No. 2, who is real sister of present Petitioner, she transferred her right in the property in dispute by virtue of registered sale deed dated 18.5.1998 for consideration in favour of Respondent No. 1. Thereafter, appeal challenging the said judgment and decree was filed by present Petitioner on 23.5.1998. Respondent No. 1 filed an application for impleading him as a party in the appeal on the plea that he has stepped into the shoes of Respondent No. 2, sister of Petitioner, after sale in his favour. The said application was allowed by Hon''ble Apex Court and he was allowed to be impleaded as a party in the appeal. Thereafter the present application has been moved by Respondent No. 2, i.e., sister of present Petitioner, for withdrawal of the suit on the basis of alleged compromise with his brother, i.e., present Petitioner, which was contested by Respondent No. 1 on the ground that the said application is a result of collusion between Petitioner and Respondent No. 2 just to deprive him of his rights in the property in dispute, which he acquired vide registered sale deed dated 18.5.1998 for consideration executed by Respondent No. 2 in his favour when she was declared owner of the property in dispute by learned trial Court. Prayer of Respondent No. 2 was declined by learned appellate Court by observing as under:

I have duly considered the rival contentions of the parties. It would be revealed that suit can be withdrawn even at the appellate stage. Once a decree is passed by trial Court and is challenged in appeal, it would not be open to the Plaintiff to withdraw the suit so as to destroy the decree and rights which have come to be vested in the parties to the suit unless very strong reasons are shown that it would not effect or prejudice anybody''s vested rights so ruled in R. Rathinavel Chettiar''s case (Supra). In the present case also, the consent decree allegedly suffered by Birmati in favour of the Appellant Ram Phal was set aside by impugned judgment and decree. Respondent No. 1 sold the suit land to Respondent No. 2 as per the version of Respondent No. 2 by way of sale deed dated 18.5.98. He has now been allowed to be impleaded by the order of Hon''ble Supreme Court. He has placed on record his sale deed. Appellant Ram Phal and Respondent No. 1 Birmati are brother and sister. Earlier also Birmati made statement on 7.12.98 that she has no objection if the appeal is accepted and impugned judgment and decree is set aside, taking a contrary stand to her initial pleadings that she herself appeared in the Court. Thereafter Respondent No. 2 Satyawan has been ordered to be impleaded and heard. By way of filing this application, the Respondent No. 1 Birmati intends to frustrate the rights allegedly acquired by Respondent No. 2 by way of sale deed. After sale of suit land Respondent No. 2 has got interest in the suit land. Moreover, vide impugned judgment and decree dated 5.5.98, learned trial Court held that earlier judgment and decree dated 17.3.93 was based upon fraud and was accordingly set aside. By way of withdrawal of the suit the judgment and decree dated 17.6.93 would become effective which has been set aside being based on fraud. It would be required to find out if there was fraud or not. The Plaintiff/Respondent No. 1 cannot be permitted to withdraw her suit as it would amount to depriving Respondent No. 2 Satyawan of his rights allegedly acquired after impugned judgment and decree and would also entail revival of the judgment and decree dated 17.6.93 which has been declared to be based upon fraud by impugned judgment and decree. Ratio of above mentioned authorities relied by learned Counsel for Respondent No. 2 are fully applicable to this case. Hence, instant application is dismissed.

It has been contended by learned Counsel for the Petitioner that suit can be withdrawn even at appellate stage in view of compromise. It has also been contended that if there is any sale-deed in favour of Respondent No. 1 executed by Respondent No. 2, he is having remedy to file separate suit. However, he cannot deny compromise entered into between Petitioner and Respondent No. 2 as he has entered into foot steps of Respondent No. 2, after its alleged purchase.

However, in view of the aforementioned facts, the present application filed by Respondent No. 2 for withdrawal of the suit is nothing but a result of collusion between Petitioner and Respondent No. 2, who are brother and sister, just to deprive Respondent No. 1 of his rights in the property in dispute, which he has acquired by way of registered sale-deed executed in his favour by Respondent No. 2. Vide impugned judgment and decree dated 5.5.1998 passed by learned trial Court in favour of Respondent No. 2, it was held that earlier judgment and decree dated 17.3.1993 in favour of present Petitioner was based upon fraud and accordingly the same was set aside. Hence, it has been rightly observed by learned appellate Court that if the suit is permitted to be withdrawn and if the said judgment and decree dated 5.5.1998 is permitted to be set aside, the same would amount to restoration of earlier decree dated 17.3.1993 depriving Respondent No. 1 of his rights in the property, which he acquired from Respondent No. 2 by virtue of sale-deed dated 18.5.1998.

Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in passing the impugned order and that grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and Ors. 2004(1) RCR 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and a grave injustice or gross failure of justice has occasioned thereby.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of the appeal on merit by learned appellate Court.