Dismissed

Jagdish Chander v. Sri Chand & Ors.

Delhi HC9 Aug 2011RSA/93/2011

Case brief

AI extract

What is this about?

This second appeal sought reversal of concurrent orders dismissing a civil suit as time-barred under Order 7 Rule 11 CPC. The court held no substantial question of law arose, noting the compromise was valid and the later suit was barred by limitation without eligibility for condonation or Section 14 benefit.

What did the court decide?

The second appeal was dismissed with no merits found in the contention that the suit is maintainable.

Jagdish Chander Vs Sri Chand & Ors. — Contract and Commercial Disputes | Delhi HC (2011)

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*** IN THE HIGH COURT OF DELHI AT NEW DELHI**

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+ RSA No.93/2011

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9^th August, 2011

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JAGDISH CHANDER ...... Appellant Through: Mr. Mohit Ramdeo, Advocate.

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VERSUS

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SRI CHAND & ORS. ...... Respondents Through: None.

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CORAM:

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HON’BLE MR. JUSTICE VALMIKI J.MEHTA

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Whether the Reporters of local papers may be allowed to see the judgment?

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To be referred to the Reporter or not?

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Whether the judgment should be reported in the Digest?

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VALMIKI J. MEHTA, J (ORAL)

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The challenge by means of this Regular Second Appeal filed under Section 100 CPC is to the two concurrent decisions of the Courts below, first of the Trial Court dated 4.8.2010, and the second of the Appellate Court dated 14.3.2011, by which judgments, the plaint of the appellant/plaintiff has been rejected under Order 7 Rule 11 CPC on account of the same being barred by time.

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The facts of the case are that certain parcels of land in village Rajokri, Delhi were sold by father of the appellant to the respondents in the year 1993. The appellant thereafter filed an application before the Revenue Assistant in the year 1997 under Section 11 of the Delhi Land RSA No.93/2011 Page 1 of 5

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Reforms Act, 1954 alleging that the share of his father was wrongly recorded as 1/6^th and 1/4^th in two parcels of land whereas the share of the appellant, and the father and brother of the appellant was 1/18^th and 1/12^th each. The appellant sought a declaration that he was bhumidar of 1/18^th share out of the land khata khatoni no.36/29 and 1/12^th share in khata khatoni no. 37/30 standing in the revenue record by filing an application. During the proceedings before the Revenue Assistant on 24.6.2004, the appellant entered into a compromise and signed a memorandum of understanding with the respondents for amicable settlement of the dispute and the appellant received a sum of Rs.1,00,000/- towards “cost of the proceedings”. However it is not disputed that by virtue of a compromise it was agreed that the appellant has no right in the land in question and for which a memorandum of understanding was executed. Consequently, the appellant withdrew his application filed under Section 11 of the Delhi Land Reforms Act, 1954 and which application was signed by the appellant and his counsel. Subsequently, thereafter on 27.7.2004 the appellant filed an application under Section 151 CPC stating that a fraud had been played upon him and that his application under Section 11 of the Delhi Land Reforms Act, 1954 be restored. The Revenue Assistant dismissed the application which sought recall of the compromise order. The appeal filed by the appellant before the Deputy Collector was also dismissed. The Deputy Collector while dismissing the appeal has noted in his order that the father of appellant had sold his holdings to the respondents through a General

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RSA No.93/2011 Page 2 of 5

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Power of Attorney and mutation was sanctioned in favour of the respondents and it appears that there would have been disputes which led to some dissatisfaction between the two parties with respect to the value of the land and which were not in the purview of the disputes before the Revenue Assistant. Further, an appeal filed under Section 66 of Dlhi Land Reform Act, 1954 before the Financial Commissioner was also dismissed by a detailed and reasoned order. It was noted in the order of the Financial Commissioner that when the statement of the appellant was recorded by the Revenue Assistant with respect to the compromise, his counsel was also present and the application under Section 11 of the Delhi Land Reforms Act was withdrawn after receiving the agreed amount from the respondents. The appellant further challenged the order of the Financial Commissioner by means of a Writ Petition in the Delhi High Court and which Writ Petition was withdrawn after addressing arguments inasmuch as the counsel for the appellant made a statement that the appellant was in the process of instituting a civil suit to challenge the settlement as fraudulent. The suit was dismissed as time-barred and the appeal which was thereafter filed against the order dismissing the suit under Order 7 Rule 11 CPC being barred by time was also dismissed.

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The Courts below have held that there is no question of giving benefit of Section 14 of the Limitation Act, 1963 to the appellant because the earlier proceedings which were pending before the Revenue Assistant were not such proceedings which were initiated in the Court of wrong jurisdiction. Cause of action had accrued on 27.7.2004 for which the

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RSA No.93/2011 Page 3 of 5

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limitation period expired on 26.7.2007 and the suit was however filed much later on 22.12.2008. In fact, the Appellate Court noted that the appellant did not even file an application under Section 14 of the Limitation Act. The Appellate Court has taken a view, and with which I agree, that once a compromise is recorded in a civil proceeding, the spirit of Order 23 Rule 3(A) CPC applies that no independent proceedings will be allowed thereafter to challenge a compromise decree and it is only before the same Court which recorded the compromise that an application for recall has to be filed. Admittedly this application for recall was filed and dismissed right till this Court.

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Learned counsel for the appellant sought to argue that he was entitled to file a civil suit in order to challenge the memorandum of understanding which was executed pursuant to which the case before the Revenue Assistant was compromised on 24.6.2004. Firstly, I have already observed that the spirit of Order 23 Rule 3(A) CPC applies and it was before the Revenue Assistant himself that proceedings for recall of the compromise order should have been filed, and which were in fact filed and thereafter dismissed right upto this Court. Consequently, the issue is not of entitlement to file the suit but that the suit was filed beyond limitation. It is trite that there is no question of condonation of delay under Section 5 of the Limitation Act with respect to a suit filed beyond limitation period and the provisions of Section 14 of the Limitation Act has rightly been held not to be applicable in the facts of the present case.

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RSA No.93/2011 Page 4 of 5

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A second appeal under Section 100 CPC, against two concurrent judgments of the Courts below will only lie if there arises a substantial question of law. In the guise of the second appeal, matters which are already argued and held against the appellant by both the Courts below by means of valid reasons cannot be said to be a substantial question of law.

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In view of the above, there is no merit in the appeal. No substantial question of law arises. Dismissed.

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AUGUST 09, 2011 ak

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VALMIKI J. MEHTA, J.

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RSA No.93/2011 Page 5 of 5

Jagdish Chander v. Sri Chand & Ors.

Case brief

What is this about?

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Jagdish Chander v. Sri Chand & Ors.

Case brief

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