The High Court dismissed a civil revision application seeking to set aside a compromise decree. The petitioners alleged fraud, forgery of thumb impressions, and lack of service of summons but failed to lead evidence to substantiate these claims. The court held that the burden of proving fraud lies with the complainant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.1984 of 2006
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Both sons of late Munna Yadav, resident of village-Hathmarwa, P.S. Sirdala, P.O. Sandhi, District-Nawada
.... .... Petitioner/s
Versus
Munishwar Prasad Yadav @ Bhuneshwar Prasad Yadav, son of late Tulsi Prasad Yadav, resident of village-Hathmarwa, P.S. Sirdala, P.O. Sandhi, District Nawada .... .... Opposite Party
=========================================================== Appearance :
For the Petitioner/s : Mr. Ram Adya Singh, Adv.
Mr. Arjun Prasad, Adv.
For the Respondent/s : ………
=========================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT
Date: 15-03-2013
Heard Mr. B.N.P. Singh, learned counsel for the petitioners and Mr. Manoj Kumar Ambastha, learned counsel for the opposite party.
This civil revision application is directed against the order dated 19.8.2006 passed by learned Sub Judge-Ist, Nawada in Misc. Case No. 1 of 2001 whereby the learned Court below has been pleased to reject the application filed by the defendants-petitioners under the provisions of Order 23 Rule 3 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’) read with Section 151 thereof for setting aside the compromise decree dated 7.10.1999 passed in Title Suit No. 22 of 1999.
Facts of the matter in brief is that the three petitioners herein and the father of the plaintiff-opposite party late Tulsi Prasad Yadav are coming from a common ancestor late Munna Yadav. The plaintiff-opposite party is the own
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nephew of these petitioners. The suit in question was filed for partition on 7.10.1999. A compromise was filed in the case duly containing the left thumb impression of these petitioners. Learned trial Court upon consideration of the joint compromise filed by the parties to the suit and after taking oral evidence thereon, decreed the suit in terms of the compromise on the same date i.e. 11.10.1999. The shares having been allotted in terms of the compromise, the petitioners claiming lack of knowledge regarding the compromise decree, filed an application under Order 23 Rule 3 read with Section 151 of the Code complaining fraud being practiced by the plaintiff-opposite party in obtaining the compromise decree on 11.10.1999.
It is the case of the petitioner Nos. 1 and 2 that they are working in Kolkata and had come on visit to the village on 26.12.2000 when they became aware of the compromise and following which an inspection was carried out through counsel Arjun Singh and Umesh Prasad Singh on 2.1.2001 and then the fact about the decree became known. It is upon gathering such knowledge that the miscellaneous case in question was filed on 8.1.2001 and which has been dismissed by the order impugned and hence the present civil revision application.
Mr. B.N.P. Singh, learned counsel has appeared on behalf the petitioner and submitted that the compromise decree is a result of fraud practiced by the plaintiff-opposite party and that neither they had participated in the compromise nor did they put their thumb impression on the compromise or did they engage the counsel who allegedly appeared on their behalf namely Anup Kumar Sinha.
It is stated that the defendants-petitioners by raising all these grounds, has made a prayer for setting aside the compromise decree and which has been wrongfully rejected by the Court below on misappreciation of facts and upon ignorance of the evidence on record.
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Mr. Singh while canvassing the case of the defendants-petitioners has stated that once an allegation of fraud was made by the defendants-petitioners, it was the bounden duty of the trial Court to have held enquiry into the matter before arriving at a finding. It is the submission of the learned counsel that the Court being an expert on the issue, a difference in the left thumb impression is evident from a naked eye. It is submitted that despite a specific prayer was being made by the petitioners for affording opportunity to the finger print expert for examining the thumb impression, no such opportunity has been provided by the Court below and which has seriously prejudiced the case of the petitioners. It is the further contention of the learned counsel that notwithstanding any opinion of the expert, the trial Court being an expert unto itself ought to have given a finding on the thumb impressions but the trial Court has failed to exercise jurisdiction vested in it.
The arguments of Mr. Singh has been contested by Mr. Manoj Kumar Ambastha learned counsel for the plaintiff-sole opposite party and who in his short submission has stated that as the defendants-petitioners failed to prove the charge of fraud being practiced by the plaintiff nor could prove any forgery in the left thumb impressions available on the Vakalatnama and on the compromise as also on the evidence, there was no other option to the trial Court but to dismiss the case and which has been correctly decided.
I have heard learned counsel for the parties and I have perused the materials on record.
It is by now well settled that a compromise decree cannot be questioned by a party to the compromise except against the anvil of fraud. Be it fraud on Court or fraud on the party, in either of the situations the only option available to a party to compromise is by way of a miscellaneous case and which has correctly
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been preferred by these petitioners.
The question is whether the defendants-petitioners despite raising issues in their application, copy whereof is placed at Annexure-1 of this application, have been able to drive home their allegations.
Primarily, the issues raised by these petitioners for questioning the compromise decree on the issue of fraud are as follows:
It is rather surprising that even while a number of issues have been canvassed before this Court for questioning the compromise decree, the defendants-petitioners have not been able to lead any evidence in support of these allegations and which is manifest from the following position.
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had no information about the same.
The circumstances outlined hereinabove, are sufficient indication of the fact that the defendants-petitioners have been utterly callous in their endeavour to prove fraud leading to the compromise decree. Having failed to lead any evidence for establishing their plea of fraud, the petitioner now are trying to shift the burden on the trial Court on grounds of failure to exercise jurisdiction. It does not need reference to any judicial pronouncement to hold that an allegation of fraud is not only to be taken but has to be proved by the party complaining by cogent evidence. Even when the evidence on the partition, of these petitioners are a matter of record evincing from the Vakalatnama, the compromise petition and their oral evidence taken on the compromise, yet no evidence was led by these petitioners to prove that these evidences were an act of fraud.
The circumstances as set out hereinabove lead only to one inevitable conclusion and which finds answer in the order of the Court below.
Apart from the fact that the order under challenge neither suffers from any legal infirmity or jurisdictional error even on merits, the petitioners have failed to substantiate their claims requiring interference in
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the order impugned.
For the reasons aforesaid, this application is dismissed but in the
circumstances without any order as to costs.
Let the Lower Court Records in connection with Misc. Case No. 01 of 2001 with P.S. No. 22 of 1999 be returned to the Court concerned
forthwith, in a sealed cover.
(Jyoti Saran, J)
Bibhash/-
3 issues framed by the court
Whether the alleged fraud regarding the compromise decree was proved by the petitioners with cogent evidence.
Whether the trial court erred in dismissing the application to set aside the compromise decree due to failure to order a fingerprint expert examination.
Whether there was any legal infirmity or jurisdictional error in the impugned order dismissing the miscellaneous case.
2 provisions across 1 enactments
Sarjug Yadav
Darshan Yadav
Ram Briksha Prasad Yadav
Munishwar Prasad Yadav
Jyoti Saran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
