GOPAL MOHAN VADHERA Vs. JAGDISH RAI VADHERA

JUDGEMENT

(1.) THIS order shall dispose of four applications. IA No. 1868/2007 (forstay) and IA No. 1869/2007 (for setting aside the compromise decree dated 25. 08. 2006) have been filed in CS (OS)2885/1989 on behalf of the defendant no. 2 (Suharsh Mohan Vadhera)[hereinafter referred to as 's. M. Vadhera']. The said Mr S. M. Vadhera is also the plaintiff in CS (OS) 449/2001. In that suit also, similar applications being IA 1866/2007 (for stay) and IA No. 1867/2007 (for setting aside the compromise decree)have been filed. The compromise decree was passed in both the suits.

(2.) THE learned counsel appearing on behalf of mr S. M. Vadhera, the applicant in these applications stated that a fraud was committed upon him by the other parties inasmuch as the terms of settlement indicated that the plaintiff in CS (OS) 2885/1989 would hand over vacant and peaceful possession of the property in favour of the said mr S. M. Vadhera, whereas the said plaintiffs and other defendants were always aware that vacant possession of the ground floor of the property bearing No. 5a/6, Ansari Road, darya Ganj, New Delhi (hereinafter referred to as 'the Darya Ganj Property')could not be obtained inasmuch as it was occupied by a tenant. Consequently, as stated in para 12 of IA No. 1869/2007, it is alleged that the other parties made a promise without any intention of performing it and this constituted fraud. It is, therefore, alleged that the consent of the applicant (Mr S. M. Vadhera) to the agreement / compromise, which culminated in the decree of 25. 08. 2006, was obtained by fraud and is, therefore, voidable at the option of the applicant (S. M. Vadhera), which option he wants to exercise.

(3.) THE learned counsel for the applicant submitted that Order 23 Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC')requires that a compromise of a suit is to be based on a lawful agreement. He then referred to the proviso to the said rule 3 which stipulates that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question. Referring to the explanation appended to the said Rule 3, the learned counsel submitted that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule. He, therefore, submitted that an agreement or compromise which could be regarded as void or voidable under the Indian contract Act, 1872 would riot be a lawful agreement and a compromise based on such an agreement which was not lawful could be challenged.