SUNITA GUPTA Vs. INDERJEET SINGH

JUDGEMENT

(1.) THIS application has been filed under Section 151 CPC for modification of terms of compromise as recorded in I.A. No.6506/2009 and in terms of which compromise the suit was decreed. The applicants were not parties to the suit or to the compromise aforesaid. They however claim to be successors in interest and assignees of the defendant no.1 Shri Inderjit Singh who was a party to the compromise. In terms of the said compromise the defendant no.1 Shri Inderjit Singh had exclusive rights of ownership and construction inter alia over the existing roof/terrace above the second floor of the property No.G -60, East of Kailash, New Delhi, on the condition that he shall be obliged to at his own cost reconstruct the servant quarters, toilets and water tanks existing on the said terrace to the roof/terrace of the fresh construction (of the third floor). It was also recorded in the compromise that the plaintiff is entitled to two servant quarters and toilets -cum -bath as existing on the terrace above the second floor.

(2.) THE applicants claim that the defendant no.1 Shri Inderjit Singh sold the said terrace to one Smt. Sneh Lata Pahuja and Shri Virender Pahuja (defendant no.3) (and both of whom were also parties to the compromise) and who in turn sold the same to the applicants; that the applicants submitted proposal to the MCD for raising construction on the said terrace but MCD insisted upon the applicants producing a "No Objection" from the other owners of the building; that while the other owners have given their no objection, the plaintiff has refused to give the "No Objection" on the ground that MCD would not permit construction of servant quarters and toilet on the terrace of the proposed construction. This application has been filed for modification of the condition in the compromise entitling construction on the terrace above second floor only subject to shifting of the servant quarters and toilet on the terrace of the proposed construction and by offering that the servant quarters and the terrace can be constructed at another appropriate place which MCD is willing to sanction.

(3.) THE counsel for the applicants has relied on: - Order dated 30th March, 2009 of the Supreme Court in Civil (i) Appeal No.2006 -2007/2009 titled Devineni Tirupathirayudu v. Surapaneni Suramma observing that the only course open to the legal representatives of a party to a compromise is to apply for recall of the compromise decree in as much as they cannot file independent suit challenging the compromise decree in view of the bar contained in Order 23 Rule 3A of the CPC; (ii) Pushpa Devi Bhagat v. Rajinder Singh (2006) 5 SCC 566 laying down that since neither appeal nor independent suit is maintainable against/for setting aside of a compromise decree, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the Court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. It was further held that the Court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not; (iii) Preetinder Singh v. Gursharan Singh 2010 I AD (DELHI) 657 reiterating the aforesaid position; (vi) Rajwanti v. Kishan Chand Shehrawat 160(2009) DLT 185 dismissing a suit challenging a compromise decree as not maintainable; Judgment dated 21st December, 2007 of this Court in CM (M) (v) No.483/2003 titled Chanchal Bansal v. Himanshu Bansal, also holding that the only remedy to lay a challenge to a compromise decree unlawfully obtained or which is void or voidable is to move an application before the court concerned which had passed the decree; Reliance in this regard was placed on Banwari Lal v. Chando Devi (1993) 1 SCC 581.