Om Parkash vs Shiv Shankar and Others

Adarsh Kumar Goel, J.—The appellant filed a suit for declaration to the effect that he was owner in possession of the agricultural land and the residential house and decree dated 16.5.1980 was void. His case is that he was owner in possession of half share of agricultural land measuring 230 kanals 7 marlas vide decree dated 23.5.1972. He was also entitled to 1/5th share of the estate of his father Ram Chander but the defendants fraudulently obtained decree dated 16.5.1980 without service of any notice to the appellant and by filing a written statement with forged signatures of the plaintiff. The fact that Gobind had died, whose name was in revenue record, was also concealed.

The respondents contested the suit and stated the plaintiff had duly appeared in the earlier suit and was represented by Shri Sajjan Sharma, Advocate and had filed written statement and he made a statement in Court.

The trial Court dismissed the suit. It was held that from the evidence of DW-2 Sajjan Sharma, Advocate, it was duly proved that the Vakalatnama and the written statement were filed on behalf of the plaintiff by the said Advocate and the said advocate had made a statement before the Court on his behalf. The plaintiff had also admitted signatures on the written statement as Mark ''A'', though, he stated that he had signed on blank paper which was not proved.

The lower appellate Court affirmed the findings of the trial Court. Hence this appeal.

Learned counsel for the appellant submitted that under Order 23 Rule 3 C.P.C., statement of the plaintiff before the Court was mandatory and statement of counsel on his behalf was not enough, in absence of which suit could not have been decreed by way of compromise, as held by the Apex Court in Gurpreet Singh Vs. Chatur Bhuj Goel, , which has been followed by this Court, in Manohar Lal and Another Vs. Surjan Singh and Another, . He also submitted that the signatures of the plaintiff on the written statement in the previous suit were also required under Order 6 Rule 14 C.P.C. and signatures by the counsel were not enough. He further submitted that previous decree was void for want of registration, as held by the Apex Court in Bhoop Singh Vs. Ram Singh Major and others, .

Learned counsel for the respondent-defendants submitted that statement of advocate on behalf of the plaintiff and signatures of the advocate on the written statement were enough. He also submitted that judgment of the Apex Court in Bhoop Singh (supra) did not help the appellant as this was a case of family arrangement "in which the parties in whose favour decree was passed, had a pre-existing right and which was duly acknowledged by the appellant.

Learned counsel for the respondents relied upon decisions of the Apex Court in Byram Pestonji Gariwala Vs. Union Bank of India and others, , Jagtar Singh v. Pargat Singh 1997(2) R.C.R. 50 and Uttam Singh Dugal and Co. Ltd. v. United Bank of India 2000(4) R.C.R. 89 holding that even in absence of signing by the parties, a compromise decree could be valid if the same was signed by the counsel. To the same effect is the judgment of this Court in Girnari Devi and Others Vs. Gopal Dass and Another, and a judgment of the Delhi High Court in Archies Greetings & Gifts Ltd. v. Garg Plastic 2003(4) R.C.R. 470. He also replied on a judgment of the Apex Court in Bachan Singh v. Kartar Singh and Ors. (2002)131 P.L.R. 512 to submit that consent decree will not require registration. He also relied upon decisions of this Court in Gurdev v. Jagtar Singh 2002(4) R.C.R. 277 (P&H): 2003(1) ICC 131 and Jagdish and Others Vs. Ram Karan and Others, .

I have considered the rival submissions and perused the record.

In view of judgments relied upon by the counsel for the respondents particularly judgment of the Apex Court in Byram (supra), contention raised on behalf of the appellant that in absence of signatures of the parties, signing by the counsel was not valid, cannot be accepted. Further contention that decree was void for want of registration, as held in Bhoop Singh (supra), can also not be accepted. In the said Judgment itself, it was held that a family settlement did not require registration nor a consent decree based on family settlement where a plaintiff had a pre-existing right could be held to be transfer of immovable property, the same being recognition of already existing right. The decisions cited by the learned Counsel for the respondents also support this view.

Since both the Courts below have held that decree dated 16.5.1980 was not obtained by fraud and the said finding is not shown, in any manner, to be perverse or against law, no substantial question of law arises.

The appeal is dismissed.