S RAMANATHA GUPTHA Vs. S VENKATACHALAPATHY

JUDGEMENT

(1.) This application which has been presented by the original applicant No.2 in RFA. 115/94 raises certain issues of some consequence with regard to the conduct of proceedings before Courts and the finality or otherwise that has to be attached to the actions of parties to those proceedings. The appeal came to be dismissed by me by order dated 10-1-95 and the reason for this was because the two appellants filed a joint memo dated 1-2-95 (sic) requesting the court for permission to withdraw the R.F.A. in question. The appellants have been duly identified by their learned advocate apart from which the memo in question has been affirmed before an advocate and notary by the name of B.S. Padma Prasad. Subsequent this, it appears that applicant No.1 was no longer interested in the litigation and the second applicant thereafter presented one more memo to the Court which is on record dated 3-3-94 duly signed by him requesting that the appeal may be dismissed as withdrawn in view of the compromise decree passed in O.S. 488/90 which is the subject-matter of this appeal. On 10-1-95, this Court dismissed the appeal on the basis of these documents. Thereafter the present application has been filed on 13-1-95 wherein a lengthy history of the proceedings has been set out and an application has been made for restoration of the appeal. The basic ground that is canvassed in the affidavit is that the compromise decree pertains to a family partition of various family assets and it is the grievance of the applicant that despite certain shares having come to him, he has not got as valuable a share as the others have. He, therefore, contends that he is interested in prosecuting the appeal which is for setting aside the compromise decree.

(2.) It is necessary for me to briefly recount the significant background of the applicant who was one of the plaintiffs i0n the suit before the City Court and whose prayer was that the Court should pass a decree partitioning the various family assets. A composite compromise application was prepared, drafted out, finalised, signed by the parties including the present applicant and filed before the Court on 12-4-90. At that time the various parties who are all businessmen were represented by their respective lawyers. Nothing happened hurriedly and as late as on 4-1-91 which is after about nine months, the Court disposed of the suit passing a decree in terms of the compromise petition. This time period is of some significance because learned advocate appearing on behalf of the applicant before me has submitted that the applicant No. 2 has been a victim of a fraud and that he has been deprived of valuable property by his brothers through such a fraud. Admittedly, the applicant is a businessman and he was a party to the preparation,finalisation and signing of the compromise petition which recorded the manner in which the properties were to be sub-divided, nine months after the petition was signed and filed in the Court. He did not raise any grievance about the fraud that is alleged to have been played on him even after the Court passed orders on 4-1-91 and the sub-division had taken place. No such grievance of fraud was made nor was any application filed to the City Court recording that the decree had been obtained by fraud and that it will have to be recalled or set aside.

(3.) Thereafter, on 24-2-92 which is 131/2 months after the decree was passed, the present appeal has been filed wherein the contention raised was that the compromise decree should be reconsidered and set aside. This matter has been pending before the Court for quite sometime and, thereafter, on 1-2-93 the appellant No.2 filed the memo duly sworn before the Notary Public asking that he be permitted to withdraw the appeal. Fortunately, he admits having signed the memo and does not dispute at least his signature. This is not all because on 3-3-94, which is after the lapse of another 13 months, one more memo is filed duly signed by him wherein he admits his signature, wherein he states again that the appeal should be dismissed as withdrawn because he accepts the compromise decree passed by the City Court. These two memos are on record and it is on the basis of these two memos that the appeal has been disposed of. Original appellant No.1 has no grievance about the order passed by the Court but it is only the 2nd appellant who has thereafter once again made an application to set aside the order dated 10-1-95 and restore the appeal for hearing.