The Municipal Board and Others vs Majisa Contractor

Pratap Krishna Lohra, J.—Appellants-defendants have preferred this appeal under Section 96 C.P.C. of the Code of Civil Procedure, 1908 (for short, ''CPC'') to assail the impugned judgment and decree dated 06.11.2012, passed by learned Lok Adalat, Sirohi, as a consequence of compromise being arrived at between the rival parties. The learned Lok Adalat verified the compromise and accordingly, decree-sheet was drawn.

The facts, in brief, are that respondent-plaintiff filed a suit, for recovery of a sum of Rs. 4,57,631/-, before the learned District Judge, Sirohi, against the appellants. During the pendency of the suit, the parties mutually settled their dispute and a compromise is arrived at. In terms of compromise, appellants agreed to pay part of the amount claimed by the respondent-plaintiff and submitted a written application/compromise to pay a sum of Rs. 4,03,409/- to the respondent-plaintiff after making permissible deduction of 15.25%. In the application, it is also agreed by the appellants that the requisite amount would be paid to the respondent-plaintiff within fifteen days. The complete text of application, which was in the form of compromise, bearing the signatures of both the parties, reads as under:-

The present appeal is filed after delay of 179 days along with the application for condonation of delay.

Office has also pointed out defect that address of the respondent is incomplete. Despite availing many opportunities, defect No. 2 is not removed. On 05.03.2014, the Court passed an order that notice under Section 5 of the Limitation Act shall be issued after removal of defect No. 2. Yet again, on 21.03.2014, the same order was passed, but till date defect No. 2 has not been removed.

Upon examining the application under Section 5 of the Limitation Act, this Court is of the view that grounds, set out in the application for condonation of delay, are not good and sufficient. It is trite that for craving condonation of delay, an aggrieved party is required to plead sufficient cause for the delay.

True it is that sufficient cause is to be construed liberally, but at the same time delay cannot be condoned for mere askance. The application under Section 5 of the Limitation Act is bereft of material facts for granting indulgence to the appellants for condonation of delay. Therefore, I am not persuaded to condone the delay of 179 days. My this view finds support from a judgment of Hon''ble Apex Court in Basawaraj and Others Vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746 : (2013) 13 JT 469 : (2014) 1 RCR(Civil) 603 : (2013) 10 SCALE 391 : (2013) 14 SCC 81 , wherein Hon''ble Apex Court has held as under:-

"9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, Mata Din v. A. Narayanan, Parimal v. Veena and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai.)

In Arjun Singh v. Mohindra Kumar-this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of "sufficient cause".

The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (Vide Madanlal v. Shyamlal and Ram Nath Sao v. Gobardhan Sao.)

It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim. dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury''s Laws of England, Vol. 28, p. 266:

"605. Policy of the Limitation Acts.-The courts have expressed at least three differing reasons supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party''s own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn., Rajender Singh v. Santa Singh and Pundlik Jalam Patil v. Jalgaon Medium Project.)"

Although the Court is not persuaded to condone the delay but has made endeavour to examine the matter on merits. The impugned judgment and decree has been passed as a consequence of compromise having been arrived at between the rival parties and the written compromise submitted under Order 23 Rule 3 CPC is also duly verified by learned Lok Adalat. For challenging the compromise, the facts and the grounds pleaded in the appeal are not convincing. Precisely, the appellants have averred in the memo of appeal that before entering into compromise the officials of the Municipal council, Sirohi have not measured the work undertaken by the respondent-plaintiff in its presence and the respondent-plaintiff has also not done Item No. 4 of G-Schedule. As per the version of the appellants, cost of the work undertaken by the respondent-plaintiff comes out to Rs. 3,24,513/- only and the said amount has already been paid to the respondent-plaintiff.

I am at complete loss to understand that how and in what manner, appellants can be permitted to disown and eschew their own admission incorporated in the written compromise. The recitals contained in the application/compromise are clear and unequivocal and, therefore, appellants cannot be permitted to resile from their commitment and they are bound by the compromise decree in its letter and spirit. There is apparently no ground set out in the memo of appeal that the aforesaid compromise is outcome of any fraud or misrepresentation. In these circumstances, the plea of the appellants is not sustainable and it cannot be said that the compromise arrived at between the parties before the learned Lok Adalat is vitiated in law. Reliance in this behalf can profitably be made to a decision of Andhra Pradesh High Court in Damera Raj Kumar Vs. Doli Srinivas, AIR 2007 AP 14 : (2006) 5 ALD 694 , wherein Court while rejecting the contention of one of the parties to compromise before Lok Adalat, held in para 7:

"The main ground of attack is that the consent was obtained by coercion and threats and hence it is not a free consent at all. In the decision referred P.T. Thomas Vs. Thomas Job, AIR 2005 SC 3575 : (2005) 100 CLT 542 : (2005) 4 CTC 30 : (2005) 10 JT 304 : (2006) 142 PLR 397 : (2005) 3 SCR 20 Supp : (2005) 2 UJ 1234 : (2005) AIRSCW 4593 : (2005) 5 Supreme 374 , the Apex Court while dealing with the nature of the binding effect of the award of the Lok Adalat held that though a Lok Adalat award is the result of the contest on merits it is as equal and on par with a decree of compromise and will have the same binding effect and be conclusive and it is final and permanent and is equivalent to a decree executable and is an ending to the litigation among the parties. It was also further held that a judgment by consent is as effective as estoppel between the parties as a judgment whereby the Court exercised its mind on a contested case and the Court''s attempt should be to give life and enforceability to compromise award and not to defeat it on technical grounds. "

Hon''ble Apex Court, in case of Gangadeep Pratisthan Pvt. Ltd. and Others Vs. Mechano and Others, AIR 2005 SC 1958 : (2006) 1 CTLJ 438 : (2005) 11 SCC 273 , while considering the true purport of Order 23 Rule 3 CPC declined to interfere with the compromise arrived at between the parties on the ground that the consent is vitiated by duress or coercion. The Court held in paras 11 to 15:

"11. We have carefully perused the judgment and order of the High Court. We also requested the counsel appearing for Respondent 1 to show us a clear finding in the judgment that the consent given by Respondent 1 was vitiated by duress and/or coercion. The learned Counsel was unable to point out to us a clear finding in this regard, but reading the observations of the learned Judges in different paragraphs of the order he submitted that the High Court after considering the plea raised by Respondent 1 before it has concluded that they must be accepted. There is no real discussion of any material on record to conclude that in fact on account of duress and coercion the Respondent 1 was compelled to sign the consent terms. What appears to have impressed the High Court is that the record disclosed that apart from a sum of Rs. 7.50 lakhs paid by cheques, a sum of Rs. 7.50 lakhs was also paid to the Respondent 1 by cash. This, according to the High Court was a very "disturbing" feature of the case and in view of this fact the consent decree could not be permitted to remain on the records of the Court as that "would be a sad perversion of the truth", "and a permission to allow the parties to pervert the truth with the help of sacrosanct court records". It was observed that although a court has jurisdiction to record a compromise, which adjusts only a part of the suit, yet, it has no jurisdiction to record only a part of the compromise which ends or adjusts the suit before it, wholly or partly. This reasoning of the High Court does not appeal to us. It is no doubt true that the records disclose that the Respondent 1 had also received a sum of Rs. 7.50 lakhs in cash apart from payment of Rs. 7.50 lakhs by cheques. The parties agreed not to make this a term of the compromise, and this payment was made perhaps on the basis of mutual faith. But the finding cannot be read as a finding that the consent was vitiated by duress or coercion.

The other circumstance pointed out by the High Court is that the Respondent 1 questioned his eviction alleging that the delivery of possession by him was not peaceful, but obtained by intervention of the police as well as hooligans on the basis of an order which was obtained just before the Court closed for the Christmas vacation. Though the High Court has recorded the plea of the Respondent 1, we find no finding in the judgment to the effect that the material on record established that Respondent 1 was evicted from the premises by use of force or any other illegal means. In the absence of any such finding recorded by the High Court, we felt compelled to consider the material on record. To us it appears that all the circumstances that appear on record go against the case set up by the Respondent 1. We may discuss them briefly hereafter.

According to Mr. Ranjan Mukherjee, counsel for Respondent 1, the alleged occurrence in which Respondent 1 was forcibly evicted took place on 24.12.1997 though the case of the Respondent 1 in the High Court was that he was evicted on 27.12.1997. The consent terms were finalised on 29.12.1997 which were signed by all the parties concerned. On the application of the parties a consent decree was passed on 12.1.1998. If the Respondent 1 was forcibly evicted in an illegal manner on 24.12.1997, what steps did he take to report the matter to the higher authorities, complaining to them that he had been forcibly evicted and made to sign certain papers? The first document which is on record is a letter written by Respondent 1 to the Commissioner of Police, Calcutta dated 2.1.1998. Though this letter was written almost a week after the alleged occurrence on 24.12.1997 it is conspicuous for its failure to mention two important facts, namely, that police force was present when the eviction took place, and secondly, Respondent 1 was forced to sign certain documents. This letter of 2.1.1998 was however withdrawn by the Respondent 1 on 4.1.1998 stating that under some misunderstanding that letter had been written. What is also significant is the fact that the letter of 2.1.1998 was written much after the alleged written settlement recorded on 29.12.1997. Even if we assume for a moment that on 24.12.1997 Respondent 1 was forcibly evicted, there appears no justification for him to have signed the settlement terms on 29.12.1997. As noticed earlier between these two dates, Respondent 1 made no complaint to anyone about the manner in which he was evicted or about his having been forced to sign certain documents.

Another circumstance which is also significant is that 15 cheques were given to Respondent 1 totalling a sum of Rs. 7.50 lakhs on 29.12.1997. He deposited all the cheques in his account for encashment and barring 5 cheques the rest were encashed. Those 5 dishonoured cheques were substituted by pay orders issued by the Bank which were deposited and encashed by Respondent 1. Thus all the cheques given to Respondent 1 on 29.12.1997 were encashed by him. This conduct of Respondent 1 is wholly inconsistent with the stand that he had been forcibly evicted from the premises on 24.12.1997, and that the settlement was recorded on 29.12.1997 under duress and coercion. If we read the plea of Respondent 1 closely, the settlement was got signed on the date on which the eviction took place, and if that be so, the settlement terms must have been signed on the same date on which Respondent 1 was evicted. Surprisingly, the date of the settlement is 29.12.1997 and that is not disputed by Respondent 1. Moreover, if the cheques were given to Respondent 1 on 29.12.1997 he would not have encashed those cheques if he was compelled to sign the consent terms and the cheques were forced upon him. In normal course, what was expected of him was to move the court or the police authorities for appropriate action, which he failed to do promptly. The fact that he encashed those cheques is itself a proof of the fact that he held himself bound by the terms of settlement. It appears that only later he changed his mind and gave a twist to the happenings that took place on 24.12.1997 or 27.12.1997 or 29.12.1997. The failure of Respondent 1 to take prompt action after he was dispossessed on 24.12.1997, the fact that he signed the terms of settlement on 29.12.1997, coupled with the fact that he encashed the cheques given to him on 29.12.1997 almost conclusively establish that Respondent 1 held himself bound by the consent terms and acted in accordance therewith. His failure to report the incident to the authorities concerned promptly leads us to hold that no such incident took place in the manner alleged, and Respondent 1 voluntarily surrendered possession in terms of the settlement reached between the parties.

15.We are, therefore, of the view that the High Court was not justified in setting aside the consent decree on a finding that the consent of Respondent 1 was vitiated by duress and coercion. Accordingly, we allow the appeal, set aside the impugned judgment and order of the High Court dated 16.8.2002 and hold that the consent decree passed on 12.1.1998 is a consent decree valid in law."

Therefore, viewed from any angle, I am not persuaded to interfere with the impugned judgment and compromise decree on the ground of limitation default as well as on merits.

Resultantly, the appeal fails and the same is hereby dismissed.