This judgement ranked 1 in the hitlist.

Harbans Singh v. Atma Singh, (P&H) : Law Finder Doc Id # 128140

2001(1) CurLJ (CCR) 182

PUNJAB AND HARYANA HIGH COURT

Before :- Swatanter Kumar, J.

Civil Misc. No. 12386-C/I of 1998 & Civil Revision No. 4492 of 1998. D/d. 17.8.2000

Harbans Singh and Another - Petitioners

Versus
Atma Singh - Respondent

For the Petitioners :- Mr. S.C. Khunger, Advocate

For the Respondent :- Mr. R.K. Singla, Advocate

Limitation Act, Section 5 - Condonation of delay in filing Revision Petition -

Application - Revision petition hopelessly barred by time - No sufficient reason
given in application for condonation of delay in filing the revision - Only reason
given is that delay is not intentional - Such bald averment cannot in law
constitute sufficient cause for condonation of delay - Application under Section
5 of Limitation Act, dismissed..

[Para 5]

Case referred :

P.K. Ramachandran v. State of Kerala & Another, 1997(4) R.C.R.(Civil) 242 : 1997(8)
J.T. 189 : 1998(3) P.L.R. 605.

Harbans Singh v. Gurdial Singh.

JUDGMENT

Swatanter Kumar, J. - This revision is directed against the order dated 12.12.1997
passed by the learned Additional District Judge, Ferozepur. The plaintiff had filed a suit
for declaration with consequential relief of permanent injunction against the defendants.
It was stated that Shri Gurdial Singh never married and died issueless. He died on
21.5.1992. The defendants illegally obtained a judgment and decree dated 14.3.1992 in
the suit titled as Harbans Singh v. Gurdial Singh. The property in suit was ancestral
property and no family partition had taken place. The plaintiff claims to be the heirs of
the deceased. As such they challenged the decree and claimed ownership to the land in
dispute.

2. The suit was contested by the defendants, who stated that the decree dated
14.3.1992 was valid, legal and is not liable to be set aside. It was further stated that
Gurdial Singh while in sound disposing mind during his life time executed a Will dated
28.3.1984 in favour of defendant No. 2 and Lakhwinder Singh and excluded the plaintiff
from inheriting the property. On pleadings of the parties, the trial Court vide its order
dated 1.2.1993 had framed the following issues :-

1. Whether the judgment and decree dated 14.3.1992 is null and void as
alleged ?
2. Whether the plaintiff has locus standi to file the suit ? OPP
3. Whether the plaintiff is entitled for injunction prayed for ? OPP
4. Relief.

3. The learned trial Court after affording opportunity to the parties to lead evidence
dismissed the suit of the plaintiff. The judgment and decree of the trial Court was
assailed in appeal by the unsuccessful plaintiff. During the pendency of appeal, an
application under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code was
filed by the plaintiff-appellant praying for amendment of the plaint. The plaintiff wanted
to add another ground of challenge to the judgment and decree dated 14.3.1992 that it
was not registered in accordance with law and, therefore, passes no title. This
application was allowed by the learned First Appellate Court vide its order dated
12.12.1997.

4. The present petitioner, defendant in the suit, did not challenge this order within the
prescribed period of limitation. During the pendency of appeal, vide judgment and
decree dated 18.2.1998 the first Appellate Court remanded the case after setting aside
the judgment and decree of the trial Court and framing additional issues. What order has
been affirmed by the Court in SAAO No. 22 of 1998 decided today.

5. This revision was filed on 14.3.1998 while it ought to have been filed on or before
March, 1998 excluding the period taken in obtaining the certified copy. The applicant had
applied for the certified copy of the order dated 12.12.1997 on 5.2.1998 and the same
was ready and delivered on 7.2.1998, as such the present revision is hopelessly barred
by time. No reason whatsoever has been given in the application for condonation of
delay in filing the revision which could even remotely suggest sufficient cause on the
part of the applicant and could justify grant of prayer for condonation of delay. The only
reason given in the application is that the delay is not intentional. This kind of a bald
averment cannot in law constitute sufficient cause for condonation of delay. Keeping in
view the decision of the case titled as P.K. Ramachandran v. State of Kerala and
Another, 1997(4) R.C.R.(Civil) 242 : 1997(8) J.T. 189 and 1998(3) P.L.R. 605, I
find no reason to condone the delay and application under Section 5 of the Limitation Act
is dismissed. I may also notice that no prejudice has been caused to the present
petitioner from the impugned order. Only a plea of law has been permitted to be raised
to which the defendant had full opportunity to meet during the course of fresh trial of the
suit in terms of the order of the learned first Appellate Court dated 18.2.1998.
Consequently, the revision is also dismissed.

Petition dismissed.
This judgement ranked 3 in the hitlist.

Surjeet Singh v. Financial Commissioner (Revenue), (P&H) : Law Finder Doc Id #

787603

2017(5) R.C.R.(Civil) 418 : 2016(4) PLR 239

PUNJAB AND HARYANA HIGH COURT

Before:- Paramjeet Singh Dhaliwal, J.

CWP No. 4031 of 2016. D/d. 16.5.2016.

Surjeet Singh - Petitioner

Versus

Financial Commissioner (Revenue) and another - Respondents

For the Petitioners :- Ashish Yadav, Advocate for Deepak Sonak, Advocates.

A. Constitution of India, 1950 Article 226 Punjab Land Revenue Act, 1887,
Section 16 - Delay 296 days in filing Revision is inordinate - Limitation for filing
revision is 90 days - In the absence of any acceptable reasonable cause
supported by proof explaining each days delay , such a long delay cannot be
condoned -Other party has a right and can reasonably presume that matter has
attained finality - Where limitation has been provided by the statute, only well
reasoned explained delay can be condoned - Though, no hard and fast rule can
be laid down in this regard, but the reasonable time would mean during which
the party could have possibly done the needful - Where opposite party is likely
to suffer a prejudice on account of delay in filing appeal or revision or writ
petition, it would not be proper to interfere with the settled things in exercise
of discretion of the court - No sufficient cause shown for such a long delay in
filing revision petition - Revisional authority rightly dismissed the same as time
barred.

[Paras 16 to 18]

B. Constitution of India, 1950 Article 226 Punjab Land Revenue Rules, 1908,
Rules 16 and 17 - Appointment of Lambardar - Choice of Collector - There
should be no interference with the choice of Collector in the matter of
appointment of Lambardar, even if two views are possible - It is prerogative of
only the Collector to compare merits of candidates for appointment to the post
of Lambardar - In the absence of any perversity or illegality in the order passed
by Distt. Collector in this regard, the same should not be interfered with.

[Paras 18 to 21]

Cases Referred :
A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala, 2007(1) R.C.R.(Civil) 657 : 2007(1)
Recent Apex Judgments (R.A.J.) 510 : (2007) 2 SCC 725.

Chairman, U.P. Jal Nigam v. Jaswant Singh, 2007 (1) S.C.T. 224 : AIR 2007 SC 924.

Chandgi Ram v. State of Haryana, 2013 (4) R.C.R. (Civil) 1050.

Chennai Metropolitan Water Supply and Sewerage Board v. T. T. Murali Babu, 2014(2)
S.C.T. 193 : 2014(1) RSJ 542.

Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 (SC) 1353.

G. Ramegowda, Major v. Spl. Land Acquisition Officer, 1988(1) R.R.R 555 : (1988) 2
SCC 142.

Jagir Singh v. State of Punjab, 2015(1) R.C.R.(Civil) 154 : 2015 (1) PLJ 170.

Lila Ram v. Asa Ram, 1955 Lahore Law Times 29.

Lindsay Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and John Kemp,
(1874) 5 PC 221.

M/s. Rup Diamonds v. Union of India, (1989) 2 SCC 356.

Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service,

Amravati, AIR 1969 SC 329.

Mahavir Singh v. Khiali Ram, 2009(1) R.C.R.(Civil) 757 : 2009(3) SCC 439.

P.S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271.

Phool Kumar v. State of Haryana, 2010(2) RCR (Civil) 819.

State of M.P. etc. etc. v. Nandlal Jaiswal etc. etc., AIR 1987 SC 251.

State of Mahrashtra v. Digambar, 1995(3) R.R.R 567 : (1995) 4 SCC 683.

State of Nagaland v. Lipok AO, 2005(2) R.C.R.(Criminal) 414 : 2005(2) R.C.R. (Civil)
375.

Veerayeeammal v. Seeniammal, 2001(4) R.C.R.(Civil) 625 : 2002 (1) SCC 134.

JUDGMENT

Paramjeet Singh Dhaliwal, J. - Instant writ petition has been filed under Article 226 of
the Constitution of India for issuance of a writ in the nature of certiorari quashing the
order dated 08.10.2015 (Annexure P-5) passed by respondent No.1-Financial
Commissioner whereby revision filed by the petitioner, impugned the order dated
04.09.2014 (Annexure P-4) passed by the Commissioner, Gurgaon Division, Gurgaon,
has been dismissed, being time barred.

2. Brief facts of the case are that to fill up the vacancy caused on account of death of
Sheo Narayan, Lambardar (SC) of village Dhani Chand Nagar, applications were invited
from the interested persons by making proclamation in the village after obtaining
necessary sanction from the Collector. In furtherance of the proclamation, 6 candidates
submitted their applications out of which 3 candidates did not appear and ultimately, the
petitioner, respondent No.2 and Ashok were left in fray. The Collector after appreciating
the comparative merit of the candidates found respondent No.2-Jai Bhagwan to be fit
and suitable candidate and vide order dated 28.06.2011, appointed him Lambardar of
the village. Feeling aggrieved, the petitioner preferred appeal before the Commissioner,
Gurgaon Division, who set aside the order dated 28.06.2011 passed by the Collector and
remanded the case to the Collector for fresh decision, vide order dated 01.12.2011
(Annexure P- 3). Thereafter, respondent No.2 filed petition before respondent No.1
impugning the order dated 01.12.2011 (Annexure P-3) and respondent No.1 vide order
dated 31.10.2012, remanded the matter to the Commissioner, Gurgaon Division with a
direction to decide the case on merits. Thereafter, the Commissioner, Gurgaon Division,
Gurgaon proceeded with the matter and vide order dated 04.09.2014 (Annexure P- 4)
dismissed the appeal of the petitioner and upheld the order dated 28.06.2011 passed by
the Collector. Thereafter, the petitioner filed revision before respondent No.1 who has
dismissed the same being time barred vide impugned order dated 08.10.2015 (Annexure
P-5). Hence, this writ petition.

3. I have heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner vehemently contended that the petitioner had to go
out of station for his personal urgent work in the month of December, 2014 and returned
in the month of May, 2015, therefore, he could not file revision before respondent No.1
well in time. The delay has been duly explained by the petitioner but respondent No.1
wrongly dismissed the revision being time barred in a hasty manner. Otherwise also, the
petitioner is more meritorious than respondent No.2, therefore, he should be appointed
Lambardar. In support of his contentions, learned counsel relied upon G. Ramegowda,
Major v. Spl. Land Acquisition Officer, 1988(1) R.R.R 555 : (1988) 2 SCC 142,
Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others AIR
1987 (SC) 1353, State of Nagaland v. Lipok AO and Ors. 2005(2) R.C.R.
(Criminal) 414 : 2005(2) R.C.R. (Civil) 375 and Jagir Singh and others v. State
of Punjab and others 2015(1) R.C.R.(Civil) 154 : 2015 (1) PLJ 170.

5. I have considered the contentions of learned counsel for the petitioner.

6. The issue of unreasonable or inordinate delay has received attention in several cases
in our courts of law. There are no hard and fast rules as to the manner in which the
discretion to condone delay in filing revision/appeal etc., is to be exercised. Often, period
of delay and reason thereof, the prejudice, if any, caused to the respondents are taken
into account. A close and careful examination of all these circumstances will determine
whether delay should be condoned or not. There may be instances in which delay is
relatively slight but if condoned serious prejudice is caused to the respondents and in
other cases delay may be inordinate but due to condonation thereof prejudice is slight.
Basically, the Court while condoning delay takes into account sufficient cause and
reasons for delay. In view of this, it would be highly undesirable and indeed impossible
to attempt to lay down a specific period i.e. so many years, more on the one side, lessor
period on the other side. What is or is not inordinate or unreasonable delay depends
upon the facts of each particular case. These vary from case to case, if delay is
inordinate credible excuse is necessary to explain it otherwise natural inference would be
that it is an inexcusable. These factors have been considered in numerous cases by
various Courts of law. While assessing the delay objectively, it is to be seen from the
point of view that due to delay the party has lost interest in pursuing the matter.

7. In the present case, following factors are required to be considered for condonation of
delay:-
 a) Is the delay in filing the revision is highly excessive and is there any
reasonable explanation for the delay?
b) Will the respondents suffer, if delay is condoned?
It is well settled that if a person has a legal or statutory right to be enforced against the
respondents, he should ventilate his grievance before the competent authorities, within a
time limit, if provided under the statutory rules or any Government instructions issued
from time to time. If there is no such rule or instructions prescribing a time limit, then
the person who alleges infringement of rights or denial of any benefit, arising under
Government rules and instructions, ought to have approached the Court within a
reasonable time.

8. What is reasonable time has not been spelt out in any rule. However, the Hon'ble
Supreme Court in Veerayeeammal v. Seeniammal 2001(4) R.C.R.(Civil) 625 :
2002 (1) SCC 134, has explained the words "reasonable time", and held as follows:

'13. The word "reasonable" has in law prima facie meaning of reasonable
in regard to those circumstances of which the person concerned is called
upon to act reasonably knows or ought to know as to what was
reasonable. It may be unreasonable to give an exact definition of the word
"reasonable". The reason varies in its conclusion according to idiosyncrasy
of the individual and the time and circumstances in which he thinks. The
dictionary meaning of the "reasonable time" is to be so much time as is
necessary, under the circumstances, to do conveniently what the contract
or duty requires should be done in a particular case. In other words it
means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law
Lexicon it is defined to mean:
'A reasonable time, looking at all the circumstances of the case; a
reasonable time under ordinary circumstances; as soon as circumstances
will permit; so much time as is necessary under the circumstances,
conveniently to do what the contract requires should be done; some more
protracted space than 'directly'; such length of time as may fairly, and
properly, and reasonably be allowed or required, having regard to the
nature of the act or duty and to the attending circumstances; all these
convey more or less the same idea."
9. In the present case, the delay and laches on the part of the petitioner is apparent.
The issue of delay and latches and exercise of jurisdiction under Article 226 of the
Constitution of India has been dealt with by the Hon'ble Supreme Court in various
decisions. In this context, it would be appropriate to refer to a few decisions dealing with
delay and laches.

10. In P.S. Sadasivaswamy v. State of Tamil Nadu reported in AIR 1974 SC

2271, the Apex Court held as follows;-

". ...... A person aggrieved by an order of promoting a junior over his head
should approach the Court at least within six months or at the most a year
of such promotion. It is not that there is any period of limitation for the
Courts to exercise their powers under Article 226 nor is it that there can
never be a case where the Courts cannot interfere in a matter after the
passage of a certain length of time. But it would be a sound and wise
exercise of discretion for the Courts to refuse to exercise their
extraordinary powers under Article 226 in the case of persons who do not
approach it expeditiously for relief and who stand by and allow things to
happen and then approach the Court to put forward stale claims and try to
unsettle settled matters. The petitioner's petition should, therefore, have
been dismissed in limine. Entertaining such petitions is a waste of time of
the Court. It clogs the work of the Court and impedes the work of the
 Court in considering legitimate grievances as also its normal work. We
consider that the High Court was right in dismissing the appellant's
petition as well as the appeal."
11. The Hon'ble Supreme Court in M/s.Rup Diamonds and Ors. v. Union of India
and Ors., (1989) 2 SCC 356, while dealing with a belated claim on the basis of the
order passed in some other Writ Petitions, observed that those people who were sitting
on the fence till somebody else took up the matter to the court, cannot be given the
benefit. In that context, their Lordships held as follows:
'Petitioners are re-agitating claims which they had not pursued for several
years. Petitioners were not vigilant but were content to be dormant and
chose to sit on the fence till somebody else's case came to be decided.
Their case cannot be considered on the analogy of one where a law had
been declared unconstitutional and void by a court, so as to enable
persons to recover monies paid under the compulsion of a law later so
declared void. There is also an unexplained, inordinate delay in preferring
the present writ petition which is brought after a year after the first
rejection. As observed by the Court in Durga Prashad case, the exchange
position of this country and the policy of the government regarding
international trade varies from year to year. In these matters it is
essential that persons who are aggrieved by orders of the government
should approach the High Court after exhausting the remedies provided by
law, rule or order with utmost expedition. Therefore, these delays are
sufficient to persuade the Court to decline to interfere. If a right of appeal
is available, this order rejecting the writ petition shall not prejudice
petitioners' case in any such appeal.
12. In Chairman, U.P. Jal Nigam and another v. Jaswant Singh 2007(1) S.C.T.
224 : AIR 2007 SC 924, the Hon'ble Supreme Court, after considering a catena of
decisions on the aspect of delay held as follows:
"13. ....... Therefore, whenever it appears that the claimants lost time or
while away and did not rise to the occasion in time for filing the writ
petitions, then in such cases, the Court should be very slow in granting the
relief to the incumbent. Secondly, it has also to be taken into
consideration the question of acquiescence or waiver on the part of the
incumbent whether other parties are going to be prejudiced if the relief is
granted."
13. In A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and others, 2007(1)
R.C.R.(Civil) 657 : 2007(1) Recent Apex Judgments (R.A.J.) 510 : (2007) 2 SCC
725 as well, same issue was considered and following the earlier judgment in U. P. Jal
Nigam's case (supra), it was opined as under:
"40. The benefit of a judgment is not extended to a case automatically.
While granting relief in a writ petition, the High Court is entitled to
consider the fact situation obtaining in each case including the conduct of
the petitioner. In doing so, the Court is entitled to take into consideration
the fact as to whether the writ petitioner had chosen to sit over the matter
and then wake up after the decision of this court. If it is found that the
appellant approached the Court after a long delay, the same may
disentitle him to obtain a discretionary relief."

(Emphasis supplied)

14. In Chennai Metropolitan Water Supply and Sewerage Board and others v. T.
T. Murali Babu, 2014(2) S.C.T. 193 : 2014(1) RSJ 542, Hon'ble the Supreme Court
opined as under:

"13. First, we shall deal with the facet of delay. In Maharashtra State
Road Transport Corporation v. Balwant Regular Motor Service,
Amravati and others, AIR 1969 SC 329, the Court referred to the
principle that has been stated by Sir Barnes Peacock in Lindsay
Petroleum Co. v. Prosper Armstrong Hurd, Abram Farewall, and
John Kemp, (1874) 5 PC 221, which is as follows:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a
technical doctrine. Where it would be practically unjust to give a remedy,
either because the party has, by his conduct, done that which might fairly
be regarded as equivalent to a waiver of it, or where by his conduct and
neglect he has, though perhaps not waiving that remedy, yet put the other
party in a situation in which it would not be reasonable to place him if the
remedy were afterwards to be asserted in either of these cases, lapse of
time and delay are most material. But in every case, if an argument
against relief, which otherwise would be just, is founded upon mere delay,
that delay of course not amounting to a bar by any statute of limitations,
the validity of that defence must be tried upon principles substantially
equitable. Two circumstances, always important in such cases, are, the
length of the delay and the nature of the acts done during the interval,
which might affect either party and cause a balance of justice or injustice
in taking the one course or the other, so far as relates to the remedy."
14. In State of Mahrashtra v. Digambar, 1995(3) R.R.R 567 :
(1995) 4 SCC 683, while dealing with exercise of power of the High
Court under Article 226 of the Constitution, the Court observed that power
of the High Court to be exercised under Article 226 of the Constitution, if is
discretionary, its exercise must be judicious and reasonable, admits of no
controversy. It is for that reason, a person's entitlement for relief from a
High Court under Article 226 of the Constitution, be it against the State or
anybody else, even if is founded on the allegation of infringement of his
legal right, has to necessarily depend upon unblameworthy conduct of the
person seeking relief, and the court refuses to grant the discretionary
relief to such person in exercise of such power, when he approaches it
with unclean hands or blameworthy conduct.
15. In State of M.P. and others etc. etc. v. Nandlal Jaiswal and
others etc. etc., AIR 1987 SC 251, the Court observed that it is well
settled that power of the High Court to issue an appropriate writ under
Article 226 of the Constitution is discretionary and the High Court in
exercise of its discretion does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic. It has been further stated
therein that if there is inordinate delay on the part of the petitioner in
filing a petition and such delay is not satisfactorily explained, the High
Court may decline to intervene and grant relief in the exercise of its writ
jurisdiction. Emphasis was laid on the principle of delay and laches stating
that resort to the extraordinary remedy under the writ jurisdiction at a
belated stage is likely to cause confusion and public inconvenience and
bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed
aside. A writ court is required to weigh the explanation offered and the
acceptability of the same. The court should bear in mind that it is
exercising an extraordinary and equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the citizens but simultaneously
it is to keep itself alive to the primary principle that when an aggrieved
person, without adequate reason, approaches the court at his own leisure
or pleasure, the court would be under legal obligation to scrutinize
whether the lis at a belated stage should be entertained or not. Be it
noted, delay comes in the way of equity. In certain circumstances delay
and laches may not be fatal but in most circumstances inordinate delay
would only invite disaster for the litigant who knocks at the doors of the
court. Delay reflects inactivity and inaction on the part of a litigant- a
 litigant who has forgotten the basic norms, namely, "procrastination is the
greatest thief of time" and second, law does not permit one to sleep and
rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
In the case at hand, though there has been four years' delay in
approaching the court, yet the writ court chose not to address the same. It
is the duty of the court to scrutinize whether such enormous delay is to be
ignored without any justification. That apart, in the present case, such
belated approach gains more significance as the respondent-employee
being absolutely careless to his duty and nurturing a lackadaisical attitude
to the responsibility had remained unauthorisedly absent on the pretext of
some kind of ill health. We repeat at the cost of repetition that remaining
innocuously oblivious to such delay does not foster the cause of justice.
On the contrary, it brings in injustice, for it is likely to affect others. Such
delay may have impact on others' ripened rights and may unnecessarily
drag others into litigation which in acceptable realm of probability, may
have been treated to have attained finality. A court is not expected to give
indulgence to such indolent persons- who compete with `Kumbhakarna' or
for that matter 'Rip Van Winkle'. In our considered opinion, such delay
does not deserve any indulgence and on the said ground alone the writ
court should have thrown the petition overboard at the very threshold."

[Emphasis supplied]

15. Moreover in Chandgi Ram v. State of Haryana and others 2013 (4) R.C.R.
(Civil) 1050, this Court has held that suo motu powers cannot be left at the whims and
sweet will of the revisional authority to be exercised whenever and wherever it wants to
do so and the same cannot be exercised after expiry of several years. A relevant extract
of the findings recorded in Chandgi Ram's case (supra) reads as under:

"12. On this basis a view is possible that for limitation purposes the period
of limitation provided in Section 18 of the Act may have to be kept in view.
Of course the Full Bench has also held that non fixing of upper limit for
exercising suo motu powers, will not confer unfettered rights to the
revisional authority to exercise this power at any moment of time
accordingly to his whims.
13. From the catena of decisions referred to herein above, it can be
noticed that law is fairly well settled that the suo motu powers cannot be
exercised by the revisional authority after the expiry of several years. It
has been held in almost every decision that such powers should be
exercised within a reasonable period and in most of decisions, it is held
that it should be exercised within a few months. The view, thus, is clear
that suo motu powers cannot be left at the whims and sweet will of the
revisional authority to be exercised whenever and wherever it wants to do
so.
14. There is no plea raised before me on behalf of the respondents to
explain the delay on the part of revisional authority to invoke its suo motu
powers. From the perusal of provisions of the Act as well as the law settled
by the Hon'ble Supreme Court, impugned order (Annexure P-3) cannot be
sustained as order does not disclose any reason to hold that period of 11
years is reasonable on the facts of the case nor it discloses that the power
has been exercised on the facts and circumstances of the case within a
reasonable period."
16. So far as factor (a) in the present case is concerned, the delay of about 296 days is
apparently excessive. Admittedly, revision was filed on 15.09.2015 challenging the order
dated 04.09.2014 passed by the Commissioner, Gurgaon Division, Gurgaon. The
limitation for filing revision is 90 days as provided in the Punjab Land Revenue Act,
1887. The delay of each and every date has to be explained, supported with evidence. In
my view, the explanation furnished for condonation of excessive delay is not believable
and no cogent reasons and sufficient grounds have been given for condoning excessive
delay of 296 days in filing revision before respondent No.1. The inference is irresistible
that the petitioner had decided for unexplained reasons not to file revision within
limitation.

17. So far as factor (b) is concerned, the opposite party will suffer, if delay is condoned.
The opposite party always expects that matter is brought to finality and it cannot be kept
waiting for indefinite time to see that appeal/revision can be filed at any time. Once a
period of statutory limitation expires, delay becomes sufficiently protracted, it becomes a
sufficient and just ground to dismiss appeal/revision being time barred. Inordinate and
unreasonable delay in filing the appeal/revision constitutes an abuse of process of Court
and warrants dismissal of the same. It is also the duty of the petitioner to ensure that
appeal/revision should be filed within the time frame in accordance with the provisions of
law so that the matter may attain finality.

18. In view of above, this Court is of the firm view that the Financial Commissioner was
right in dismissing the revision as time barred as the petitioner failed to give cogent
reasons for condonation of delay of 296 days.

19. Now adverting to the merits of the case, it is settled that choice for appointment of
Lambardar lies with the Collector only. The District Collector after appreciating the
comparative merits found respondent no.2-Jai Bhagwan to be fit and suitable candidate
for the post of Lambardar and appointed him as such. It is a settled principle of law that
the choice of the Collector cannot be set aside lightly. It can only be set aside if there is
perversity or illegality in the impugned order of the Collector. Learned counsel for the
petitioner has not been able to point out any perversity or illegality in the order passed
by the District Collector. The finding of the District Collector have been affirmed by the
Commissioner.

20. In view of law laid down by Hon'ble the Supreme Court of India in the case of
Mahavir Singh v. Khiali Ram & others, 2009(1) R.C.R.(Civil) 757 : 2009(3) SCC
439, Lila Ram v. Asa Ram, 1955 Lahore Law Times 29 followed by Division Bench
of this Court in the case of Phool Kumar v. State of Haryana and others, 2010(2)
RCR (Civil) 819, the choice of the District Collector cannot be lightly set aside.

21. In Mahavir Singh's case (supra) the Hon'ble Supreme Court of India has observed
that there should be no interference with the choice made by the Collector in the matter
of appointment of Lambardar even if two views are possible. It is only the prerogative of
the Collector to compare the merits of the candidates for appointment to the post of
Lambardar.

The case law (supra) cited by learned counsel for the petitioner do not apply to the facts
and circumstances of the present case.

In view of the above authoritative enunciation of law by Hon'ble the Supreme Court, the
present writ petition filed by the petitioner is dismissed, the impugned orders of the
revenue authorities are upheld.

Costs made easy.

This judgement ranked 4 in the hitlist.

Hari Kishan v. Gian Kaur, (P&H)(D.B.) : Law Finder Doc Id # 37174

1996(1) HLR 695 : 1996(2) R.R.R. 330 : 1996(2) PLR 360 : 1996 AIR (Punjab) 263 :
1996(3) ICC 106 : 1996(3) CivilLJ 311 : 1997 Marr. L.J. 61

PUNJAB AND HARYANA HIGH COURT

(D.B.)

Before :- R.P. Sethi and R.L. Anand, JJ.

First Appeal from Orders No. 145-M of 1995 and Civil Misc. No. 11432-CII of 1995. D/d.
29.2.1996.

Hari Kishan - Petitioner

Versus
Gian Kaur - Respondent

For the Petitioner :- Mrs. Sabina, Advocate.

For the Respondent :- Mr. Arihant Jain, Advocate.

A. Limitation Act , Section 5 - Hindu Marriage Act , Section 28 - Limitation -

Delay of 54 days in filing appeal - Section 28 of Hindu Marriage Act has
overriding effect to the provisions of Limitation Act which provide limitation of
90 days for an appeal against the judgment and decree passed under Section
96 of C.P.C.

[Para 1]

B. Limitation Act , Section 5 - Hindu Marriage Act , Section 28 - Limitation -

Condonation of delay - Sufficient cause - Advice of clerk to counsel of the client
- Effect of delay - Once the limitation is over for challenging a decree, the
decree holder gets a right vested in him to treat the decree final and binding
upon the J.D. - To defeat this right of the decree holder the appellant is
required to show sufficient cause for not filing appeal within limitation on very
strong grounds - He has to show that he was acting diligently, with full care
and prudently - If client who has already undergone rounds of litigation in the
court does not care to consult his counsel and chooses to believe the advice of
clerk to his counsel, it cannot be said that he was careful nor it be treated
sufficient cause if he acted upon - Clerk not filing affidavit as to when he gave
his advice and whether he consulted his counsel first or not - No proper
explanation nor sufficient cause for condoning the delay - Application under
section 5 as well as appeal dismissed as barred by time.

[Para 2]
JUDGMENT

R.L. Anand, J. - This is an application under Section 5 of the Limitation Act dated 28th
May, 1995 moved Hari Kishan in the regular first appeal filed under Section 28 of the
Hindu Marriage Act, 1955 (for short 'the Act') titled Hari Kishan v. Gian Kaur, and the
appeal is directed against the judgment and decree dated 8th November, 1994 passed
by the Court of Additional District Judge, Patiala, vide which the learned Additional
District Judge dismissed the application under Section 13 of the Hindu Marriage Act filed
by the application against his wife Smt. Gian Kaur, whose counter claim under Section 9
of the Act was also dismissed by the said Court vide the said judgment. Aggrieved by the
said judgment and decree, the regular first appeal was filed on 25th March, 1995 after a
period of 54 days of the expiry of the period of limitation and in order to condone this
delay, the appellant Hari Kishan moved the present application with the averments that
the appeal suffers from delay of 54 days and this delay his occurred because of the clerk
of the counsel for the lower court, who informed the applicant that the limitation for
filing the appeal in the High Court was 90 days. The applicant avers that when he
contacted the counsel in the High Court for filing the appeal he was informed that the
prescribed period of limitation for filing the appeal is 30 days, which had already expired.
With the above averments Shri Hari Kishan has prayed that his application under Section
5 of the Limitation Act be allowed and in support of his application the applicant has also
filed his affidavit in which he has taken the same pleas, which have been incorporated in
the application itself. At the first instance it may be mentioned that along with the
application, the affidavit of the clerk, who allegedly had given the wrong advice, has not
been attached, nor that of his counsel, who appeared on behalf of the applicant in the
lower Court.

Section 28 of the Act lays down as follows :-

''28. Appeals from decrees and orders. -

(1) All decrees made by the court in any proceeding under this Act shall,
subject to the provisions of sub-section (3), be appealable as decrees of
the court made in the exercise of its original civil jurisdiction, and every
such appeal shall lie to the court to which appeals ordinarily lie from the
decisions of the court given in the exercise of its original civil jurisdiction.
(2) Orders made by the court in any proceeding under this Act under
section 25 or section 26 shall, subject to the provisions of sub-section (3),
be appealable if they are not interim orders, and every such appeal shall
lie to the court to which appeals ordinarily lie from the decisions of the
court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs
only.
(4) Every appeal under this section shall be preferred within a period of
thirty days from the date of the decree or order.''

Perusal of sub-section (4) of Section 28 would show that the appeal against any decree
or order passed under the provisions of the Hindu Marriage Act can be filed within 30
days, of course, after excluding the time obtained by the applicant for obtaining the
certified copies of the decrees/orders. For the decrees passed under Section 96 of the
Civil Procedure Code of course, the limitation is 90 days, but the provisions of Section 28
of the Act are the special provisions which have the overriding effect on the general law
of limitation. Section 5 of the Limitation Act, however, gives the right to the
appellant/applicant to file an appeal beyond the limitation, provided he is in a position to
show sufficient cause for not preferring the appeal or making the application within such
period. Section 5 of the Limitation Act reads as follows :-

''5. Extension of prescribed period in certain cases. -

 Any application, other than an application under any of the provisions of
Order 21 of the Civil Procedure Code, 1908, may be admitted after the
prescribed period if the appellant or the applicant satisfies the court that
he had sufficient cause for not preferring the appeal or making the
application within such period.
Explanation. - The fact that the appellant or the applicant was misled by
any order, practice or judgment of the High Court in ascertaining or
computing the prescribed period may be sufficient cause within the
meaning of this section.''

A perusal of the above section would show that the words 'Prescribed period'' mean the
period prescribed by Limitation Act itself and not by any other law.

2. Now question arises whether the delay of 54 days should be condoned in the present
case or not. In dealing with an application for condoning delay in filing the appeal
beyond the prescribed period, it is relevant to bear in mind two important
considerations, namely;

(i) The expiration of limitation for making appeal gives rise to a legal right
in favour of the decree-holder to treat the decree as binding between the
parties and this legal right should not be lightly disturbed; and
(ii) If sufficient cause for excusing the delay is shown the applicant is not
entitled as a matter of right to the condonation of delay but a discretion
has been given to the Courts to condone delay and admit appeal.

To entitle a person to succeed in an application to excuse delay in presenting an appeal,

he must satisfy the Court that he had sufficient cause for not presenting the appeal
within the prescribed period. When the time for filing an appeal has once passed, a very
valuable right is secured to the successful litigant, and the Court must, therefore, be
fully satisfied of the justification of the grounds, on which it is sought to obtain extension
of time for attacking the decree and thus perhaps depriving the successful litigant of the
advantages which he had to obtain. The appellant is bound to show that there has been
no negligence, inaction or want of bona fides before he can claim an extension of time.
No doubt while interpreting the words ''sufficient cause'' a litigant deserves to receive a
liberal construction striking a just and equitable balance between the right secured by
the respondent as a result of the expiry of the prescribed period of limitation and
injustice of depriving the appellant of adjudication of his grievance on the merits of the
appeal, for causes beyond his reasonable control, but the appellant must show that his
cause was bona fide. An act which has been done in good faith should be considered as
bona fide, but in the present case a delay of 54 days has not been properly explained.
The case set up by the applicant is that there was a wrong advice on the part of the clerk
of the counsel who appeared on his behalf in the trial Court. Strangely enough that a
litigant like the present applicant, who has already appeared in six litigations in the
various courts against his wife, in banking upon the advice of the clerk of counsel and he
has not even cared to consult his lawyer nor he enquired about the limitation after the
passing of the judgment. It is not very mistake of the counsel for his clerk, which entitles
as a matter of right to a litigant to invoke the provisions of Section 5 of the Limitation
Act. It is not sufficient for the appellant to show that he acted on the advice of the clerk
of the counsel, but he must further show and satisfy this Court that the advice was given
with due care and attention. In the present case even the clerk of the counsel has not
cared to give any affidavit in support of the averments of the applicant, nor it is the case
of the applicant that the clerk of the counsel at any point of time had consulted his
lawyer for tendering the alleged advice, as pleaded in the application. As we have stated
earlier, with the expiry of limitation a valuable right has accrued to the respondent and
she should take into her head that after the expiry of the limitation under Section 28 of
the Act, the litigation between her and her husband had ended for all times to come and
that her husband might not be interested in pursuing the application under Section 13 of
the Act. The delay of 54 days in the present case is inexcusable and from no angle it can
be said that there was sufficient cause in favour of the applicant or that he acted in good
faith with due care and caution by relying upon the alleged advice of the clerk of the
counsel. The Hindu Marriage Act came into force in 1955 and 40 years have elapsed and
by this time every lawyer of the country in the ordinary course should have the basic
knowledge that every appeal against the decree and order passed under the provisions
of the Hindu Marriage Act can be preferred within a period of 30 days from the date of
the decree or order, of course after excluding the period spent in obtaining the certified
copy of the order or decree. As stated above, the judgment was pronounced on 8th
November, 1994. The application for obtaining certified copy of the judgment was filed
on 9.11.1994, and the certified copy was ready for delivery on 2.1.1995. The instant
appeal was filed on 25.3.1995 and prima facie it is barred by limitation. The application
under Section 5 of the Limitation Act is also vague in its particulars. There is no mention
as to on which date the clerk of the counsel allegedly gave the advice to the applicant
that the appeal could be filed in the High Court within 90 days of the decree.

Resultantly, we are of the considered view that this application is without any merit and
the same is liable to be dismissed and we order accordingly.

The dismissal of the application under Section 5 of the Limitation Act has a direct bearing
on the appeal itself, which is also hereby dismissed as barred by limitation.

There will be no order as to costs.

Appeal dismissed.
 Product S.No.723072561

Judgment located by a hyperlink.

Sneh Gupta v. Devi Sarup , (SC) : Law Finder Doc Id # 181676

2010(1) M.P.L.J. 70 : 2009(2) R.C.R.(Civil) 129 : 2009(2) Recent Apex Judgments

(R.A.J.) 145 : 2009(2) CivCC 404 : 2009(6) SCC 194 : 2009(3) WBLR 949 : 2009(2) All
WC 1552 : 2009(77) ALR 47 : 2009(108) R.D. 191 : 2009(2) Scale 765 : 2009(2) Andh
LD 93 : 2009(2) A.R.C. 445 : 2009(2) SCC (Civil) 827 : 2010(1) Mh.LJ 293 : 2009(4)
Cal. H.C.N. 184 : 2009(2) GujLH 94 : 2009(2) JLJR 112 : 2009(2) PLJR 168 : 2009(1)
UAD 541 : 2009(2) RJ 875 : 2010(sup) CutLT 422 : 2009(3) CivilLJ 95

SUPREME COURT OF INDIA

Before :- S.B. Sinha and Dr. Mukundakam Sharma, JJ.

Civil Appeal No. 1085 of 2009 (Arising out of SLP (C) No. 4045 of 2007). D/d.
17.02.2009.

IMPORTANT

Compromise decree passed by Court which was void - Decree must be set aside within
period of limitation - It is not the law where the decree is void, no period of limitation
shall be attracted at all.

IMPORTANT

Preponing of date of hearing - If the hearing of a case is preponed, it should be done

with notice to all the parties.

IMPORTANT

Consent decree is as good as contested decree.

Sneh Gupta - Appellant

Versus

Devi Sarup & Ors. - Respondents

A. Civil Procedure Code, Order 23 Rule 3 - Void decree - Compromise decree

passed by Court without consent of all the parties - Decree may be void or
voidable, but even if it is void, the same is required to be set aside by filing suit
within period of prescribed under Limitation Act - It is not the law where the
decree is void, no period of limitation shall be attracted at all. 2004(1)
RCR(Civil) 767 : 2004(3) SCT 395 (SC) and 2006(7) SCC 470 relied.
[Paras 42, 45 and 48]

B. Civil Procedure Code, Order 9 Rule 6(1)(c) - Civil Procedure Code, Order 5
Rule 2 - Service of summons - Civil suit - Summons served on a party after the
date fixed in the suit had expired - The Court had in that situation under a legal
obligation to serve another summons fixing another date of hearing in terms of
Order 5 Rule 2 of the Civil Procedure Code.

[Para 47]

C. Civil Procedure Code, Section 115 - Preponing of date of hearing - If the

hearing of a case is preponed, it should be done with notice to all the parties.

[Para 38]

D. Civil Procedure Code, Order ... Rule ... - Jurisdiction - If the Court has no
jurisdiction to try a suit - If the Court has no jurisdiction, the jurisdiction
cannot be conferred by any order of court - The power to create or enlarge
jurisdiction is legislative in character. [(1988)2 SCC 602] relied.

[Para 43]

E. Civil Procedure Code, Order 23 Rule 3 - Consent decree - If the compromise

has been accepted by court in absence of all the parties, the same would be
void - But if the same having resulted in grant of a decree, the decree based on
compromise was required to be set aside. The compromise may be void or
voidable but it is required to be set aside by filing a suit within the period of
limitation - If a suit is not filed within the period of limitation, the remedy
would be barred. 1996(7) SCC 767 relied.

[Paras 42, 45 and 48]

F. Civil Procedure Code, Order 5 Rule 2 - Service of summons on defendant -

Copy of plaint not annexed with summons - Summons not served in accordance
with law.

[Para 47]

G. Civil Procedure Code, Order 23 Rule 3 - A compromise decree is not binding

on such defendants who are not parties thereto - A consent decree is merely an
agreement between the parties with the seal of the court superadded to it - If a
compromise is held to be binding, it must be signed either by the parties or
their counsel or both, failing which Order 23 Rule 3 of Civil Procedure Code
would not be applicable.

[Paras 22 and 24]

H. Civil Procedure Code, Order 23 Rule 1 - Withdrawal of suit after decree by

trial whether permissible - Held :-

(i) Where a decree passed by the trial court is challenged in appeal, it

would not be open to the plaintiff, at that stage, to withdraw the suit so
as to destroy that decree. The rights which have come to be vested in the
parties to the suit under the decree cannot be taken away by withdrawal
 of the suit at that stage unless very strong reasons are shown that the
withdrawal would not affect or prejudice anybody's vested rights.
1999(2) RCR(Civil) 447 (SC) relied.

(ii) A right to withdraw a suit in the suitor would be unqualified, if no

right has been vested in any other party. (1967)3 SCR 886 relied.

[Paras 24 and 29]

I. Indian Registration Act, 1908 Section 17 If a party relinquishes his or her

right in a property, the same must be done by a registered instrument in terms
of the provisions of Indian Registration Act.

[Para 27]

J. Constitution of India, Articles 226 and 227 - Exercise of power by High Court
under Article 227 of the Constitution - Held :-

(i) It is not the function of the High court while exercising its supervisory
jurisdiction to enter into the disputed question of fact.

(ii) It could intervene, if there existed an error apparent on the face of

the record or, if any other well known principle of judicial review was
found to be applicable. [(2004)6 SCC 71] relied.

[Para 33]

K. Limitation Act, Section 3 - Suit filed after expiry of period of limitation - In

absence of any application for condonation of delay, the Court had no
jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the
application. 2003(2) RCR(Rent) 213 (SC) relied.

[Para 49]

M. Advocates Act, 1961 Section - Professional misconduct - A counsel appearing

for a party is expected to be independent. There is no presumption that only
because two lawyers are practicing from the same chamber, they would breach
their confidentiality or commit some act which would amount to professional
misconduct.

[Para 37]

N. Civil Procedure Code, Order 9 Rule 6 - Limitation Act, 1963, Article 123 - Ex
parte decree - Under Article 123 of Limitation Act, period of limitation for
making an application to set aside a decree passed ex parte is thirty days from
the date of the decree or when the summons or notice was not duly served,
when the applicant had knowledge of the decree. The question of knowledge of
the decree by the applicant only arises where the summons or notice was not
been duly served - Onus is on the defendant to show that the application is
within time and that he had knowledge of the decree within 30 days of the
application. If the defendant produces some evidence to show that the
application is within time, it is for the plaintiff to rebut this evidence and to
establish satisfactorily that the defendant had knowledge of the decree more
than 30 days before the date of the application. [(1986)1 SCC 512] and
[(1967)2 SCR 757] relied.
[Para 47]

Cases referred :

Baldevdas Shivlal v. Filmistan Distributors (India) P. Ltd. [(1969)2 SCC 201].

Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari [JT 2007(12) SC 352]}.

Gurpreet Singh v. Chatur Bhuj Goel (1988)1 SCC 270.

Dwarka Prasad Agarwal (D) By LRs. v. B.D. Agarwal, 2003(4) RCR(Civil) 258 : [(2003)6
SCC 230].

K. Venkatachala Bhat v. Krishna Nayak (d) by LRs., 2005(2) RCR(Civil) 356 : [(2005)4
SCC 117].

R. Rathinavel Chettiar v. V. Sivaraman, 1999(2) RCR(Civil) 447 : [(1999)4 SCC 89].

R. Ramamurthy Ayer v. Raja V. Rajeswara Rao [(1972)2 SCC 721].

Bijayananda Patnaik v. Satrughna Sahu [(1964)2 SCR 538].

Hulas Rai Baij Nath v. Firm K.B. Bass & Co. [(1967)3 SCR 886].

Amteshwar Anand v. Virender Mohan Singh, 2005(4) RCR(Civil) 485 : [(2006)1 SCC
148].

Yeshwant Sakhalkar v. Hirabat Kamat Mhamai [(2004)6 SCC 71].

Kashmir Singh v. Union of India, 2008(3) RCR(Civil) 668 : 2008(4) RAJ 313 : (2008)7
SCC 259.

Jai Narain Parasrampuria v. Pushpa Devi Saraf [(2006)7 SCC 756].

T.V.R. Subbu Chetty's Family Charities v. Raghava Mudaliar [ AIR 1961 Supreme Court
797].

M. Meenakshi v. Metadin Agarwal (2006)7 SCC 470.

Sultan Sadik v. Sanjay Raj Subba, 2004(1) RCR(Civil) 767 : 2004(3) SCT 395 : (2004)2
SCC 377.

Rajasthan State Road Transport Corporation v. Zakir Hussain, 2005(4) SCT 107 :
(2005)7 SCC 447.

State of Punjab v. Gurdev Singh, 1991(3) SCT 91 : [(1991)4 SCC 1].

Mohd. Noorul Hoda v. Bibi Raifunnisa [(1996)7 SCC 767].

Nahar Enterprises v. Hyderabad Allwyn Ltd., 2007(2) RCR(Civil) 413 : 2007(1)

RCR(Rent) 345 : 2007(2) RAJ 52 : [(2007)9 SCC 466].

Manick Chandra Nandy v. Debdas Nandy [(1986)1 SCC 512].

Pannalal v. Murarilal [(1967)2 SCR 757].

A.R. Antulay v. R.S. Nayak [(1988)2 SCC 602].

State of Rajasthan v. D.R. Laxmi (1996)4 SCC 445.

Dipak Chandra Ruhidas v. Chandan Kumar Sarkar (2003)7 SCC 66.

Sayeda Akhtar v. Abdul Ahad, 2003(2) RCR(Rent) 213 : [(2003)(7) SCC 52].

JUDGMENT

S.B. Sinha, J. - Leave granted.

2. Interpretation of Order 23 Rule 1 of the Civil Procedure Code is involved in this

appeal. It arises out of a judgment and order dated 13.9.2006 passed by a learned
Single Judge of the High Court of Punjab and Haryana setting aside an order dated
29.9.2005 passed by the Additional District Judge, Jagadhari whereby and whereunder
the terms of settlement entered into by way of an agreement dated 25.4.1998 between
some of the parties hereto were declared illegal as also null and void.

3. Indisputably, two suits were filed being Suit No. 185 of 1989 and Suit No. 303 of 1992
on 20.11.1989 and 21.3.1992 before the Additional Civil Judge, Jagadhari, Haryana and
Senior Division Bench and before the Civil Judge, Jagadhari, Haryana, respectively.

In the said suits, inter alia, the question as regards an order of mutation carried out in
the Revenue records pursuant to or in furtherance of a transfer made by one Raghuvir
Singh in favour of his wife and son stated to be under an oral gift deed representing
himself as the successor of Bhanumal was in question. We would refer to the respective
claims made in the said suits a little later. We may, however, at this stage, notice the
genealogical tree which is as under :

4. Raghbir Singh is said to be the third cousin of Banu Mal. Banumal is said to have
executed a Will in favour of Munni Devi on or about 14.11.1937. He is again said to have
executed a Will in favour of Raghbir Singh on or about 27.3.1943. According to the
plaintiff, Raghbir Singh had acquired life interest in the purporting said Will without
having any right to alienate, transfer, mortgage or creating any charge on the properties
situated in various villages, namely, Rapri, Radur, Ghesfur etc.
5. In Suit No. 185 of 1989, the cause of action is said to have arisen when order of
mutation was passed in favour of the transferees of Raghbir Singh. Whereas the decree
prayed for in Suit No. 303 of 1992 was for a declaration that Raghubir Singh was only
having a life interest in the suit property and having not abided the terms and conditions
contained in the said Will dated 27.3.1943, has lost his right to manage the property in
suit; an order of mutation was the subject matter of Suit No. 185 of 1989, on the
premise, as has been noticed by the learned Trial Judge as under :

"(i) That in the alleged mutation, Banu Mal has been shown to be without his wife
and children, but in fact, he had a daughter named Jeewani @ Munni Devi, living
at that time. Thus, said mutation was sanctioned by producing a fictitious person,
in place of Banu Mal;

(ii) that mutation was neither verified nor initialed with date by filed Kanungo, as
required under para 7.4(ii) of the Punjab Land Records Manual;

(iii) that another mutation No. 1423 pertaining to the partition of joint holdings,
was sanctioned on 28.2.1954, but there is no mention in the disputed mutation
No. 1427, entered on 26.2.1954 and sanctioned on 2.3.1954, therein. Thus,
disputed mutation was kept secret and later on got sanctioned, in collusion with
revenue officers. The disputed mutation was sanctioned without any request of
Banu Mal;

(iv) that mutation No. 1422 and 1423, dated 28.2.1954 show that the
consolidation work in village Rapri started on 25.8.1952 and completed on
28.2.1954 but disputed mutation was entered prior to completion of consolidation
work and without any approval or sanction of the Consolidation Officer, as
required to be made under the Consolidation of Holdings of Punjab Act, 1948.
Had it been in the knowledge of Banu Mal, then he would have filed an application
before the consolidation Officer, but no such application is available on the
record;

(v) that under the will, Raghubir Singh (defendant No. 4) had a life estate on the
property in dispute, but he has alienated/gifted/transferred the property of the
Will to different persons, without any right, title and against the dictates of the
will. Thus, this fact goes to prove the mala fide and fraudulent intention of
Raghubir Singh, who got the disputed mutation forged and fabricated. The
disputed mutation does not show the name of the person, in whose favour of the
alleged oral hiba was made by Banu Mal; and

(vi) that said Banu Mal had been residing with his religious Guru at Saharanpur
(UP) and due to his illness, he was unable to work for about one year, prior to his
death. He was completely confined to his bed and therefore, he was not present
before the revenue officer, at the time of sanction of that mutation."

6. The cause of action for institution of the Suit No. 303 of 1992 is said to have arisen as
Raghbir Singh had not carried out the testator's intentions contained in the said Will
dated 27.3.1943 and, thus, violated the terms of the 'trust' and despite having been
called upon to handover possession failed and/or refused to do so.

7. The properties in suit involved in both the suits were also different. Whereas in Suit
No. 185 of 1989, the subject matter of the suit was 835 kanals and 7 marlas of land
(485 acres) situated in the revenue estate of village Rapri in the State of Haryana, the
subject matter of in Suit No. 303 of 1992 was the land measuring 221 kanal 8 marlas
(about 24-25 acres) situated in village Rapri, Radaur, Ghespur and Dholra).

Title Suit No. 185 was decreed by a judgment and decree dated 30.10.1996 passed by
the Additional Civil Judge, Senior Division Jagadhari, Haryana, holding :

"As a result of my findings and observations on above issues and more

particularly, on issue No. 1, 2 and 9, the suit of the plaintiff is decreed with cost,
against the defendants No. 1 to 4 and 11 to 24, with the declaration that
mutation No. 1427, sanctioned on 2.3.1954 (Ex.P-8) and sale deeds and
mutations, subsequent thereto, are illegal, null and void, ineffective, ultra vires
and not binding upon the rights of plaintiff and defendants No. 5 to 9 and plaintiff
and defendants No. 5 and 9 are also entitled to the possession of the suit land
and defendants No. 1 and 4 and 11 to 24 are also restrained from further
alienating, transferred or creating any charge on the suit land, in any manner."

8. In passing the said judgment and decree, the Court arrived at a finding that Raghbir
Singh played a fraud in making transfer of the properties purported to be under a 'hiba'
made by Banumal. It was furthermore held that order of mutation was not passed in
presence of Banu Mal. The learned Judge pointed out that while Banu Mal had been
shown to be without any issue before the Revenue Officer although , admittedly, he had
a daughter named Munni Devi @ Jeewani.

It was, therefore, opined that the purported gift in terms whereof the mutation was
sanctioned in favour of the respondent Nos. 1, 2 and 3 and their mother was an act of
fraud and misrepresentation on their part to deprive the children of Munni Devi, the
daughter of Banu Mal, of their properties.

9. Respondent Nos. 1 to 3 herein and Raghbir Singh filed appeals thereagainst before
the District Judge which were marked as Appeal No. 254/33 of 1996. As some properties
had been transferred, the transferees thereof also preferred appeals which were marked
as Appeal Nos. 218 and 220 of 1996.

10. It is not in dispute that during the pendency of the said appeals, the plaintiff and the
respondent No. 3 entered into a compromise. A compromise petition was filed in Civil
Appeal No. 254 of 1996, the terms whereof are as under :

"That the parties have compromised. As per compromise, the appeal of the
appellant may kindly be allowed and the suit of the respondents may kindly be
dismissed as withdrawn and the parties be left to bear their costs. The appellants
are the absolute owners of the suit property."

11. The learned Additional District Jagadhari in whose court the said appeal was
transferred for disposal recorded the compromise allowing the appeal and dismissing the
suit of Veena Nirwani. A declaration was also made that the appellants therein
(Respondents Nos. 1 to 3 herein) were the absolute owners of the said property.

It is not in dispute that the appellant and/or other heirs and legal representatives of the
said Munni Devi were not parties to the said compromise.

A compromise was also said to have been entered into by Veena Nirwani-plaintiff with
Raghbir Singh and others in Suit No. 303 of 1992, the terms whereof read as under :
 "1. That the suit of the plaintiff is to be decreed as prayed for in the plaint except
the land measuring 42 Kanals 3 marlas i.e. ⅓rd share of the land measuring 126
Kanals 9 marlas fully detailed and described in para 'C' of the heading of the
plaint.

2. That the defendant No. 1 has delivered/handed over the whole property fully
detailed and described in the heading of the plaint to the plaintiff and defendants
Nos. 2 to 6 at the spot and now the plaintiff and defendants Nos. 2 to 6 are in
actual and physical possession being its owners and defendant No. 1 or his
successors or LRs will have no right, title or interest of any kind in the land in
suit.

3. That the defendant No. 1 has an electric tube-well in the area of village
Dhaulra and defendant No. 1 will be bound to give water for irrigation to the
plaintiff and defendant Nos. 2 and 6 for one year.

4. That the plaintiff and defendants Nos. 2 and 6 are owners in possession of tree
etc. standing in the land in suit and the plaint has been delivered to the plaintiff
and defendant Nos. 2 and 6. However, some portion of these properties are
under the tenancy of different persons and now the plaintiff and defendants Nos.
2 and 6 will have a right to recover the rent of these properties and deal with the
properties in the manner they like i.e. they have each and every right to eject the
tenant and get possession of the same and to alienate etc. Shops mentioned at
point G & H have already been alienated by the defendants and the relief
regarding these shops is relinquished by the plaintiff.

5. That according to the aforesaid compromise the possession has been changed
and now the plaintiff and defendant Nos. 2 to 6 can get the entries corrected in
their name in the revenue records well as in the relevant municipal record etc."

12. The said compromise petition was also accepted. It is stated that pursuant to or in
furtherance thereof, Raghbir Singh delivered possession of ⅔rd of the property in suit in
favour of Respondent Nos. 4 to 8 herein as also the appellant, retaining the ⅓rd thereof.
The suit was decreed in part.

13. Appellant filed an application before the Court of Additional District Judge, Jagadhari
questioning the compromise entered into by and between the plaintiff and the
respondent Nos. 1 to 3 pursuant whereto the said suit No. 185 of 1989 was allowed to
be withdrawn on the premise it had been done without her knowledge and consent and
despite the fact that she had got vested rights therein in terms of the judgment and
decree passed by the trial court in suit No. 185 of 1989. It was furthermore contended
that prior to acceptance of the said compromise, it was obligatory on the part of the
learned Judge to issue notice upon the appellant and others who derived benefit under
the said judgment and decree dated 30.10.1996 passed in Suit No. 185 of 1989. The
learned Additional District Judge by an order dated 29.9.2005 accepted the said
contentions of the appellant and set aside the compromise decree dated 25.4.1998
opining that the same was illegal, null and void.

14. Applications under Article 227 of the Constitution of India preferred thereagainst
which were marked as C.R. 6473 and 6588 and 6589 of 2005 have been allowed by a
learned Single Judge of the High Court by reason of the impugned Judgment.
15. In these appeals, except Veena, all other children of Munni Devi supported the
appellant, although they did not file any application for setting aside the said consent
decree.

16. Mr. Jayant Bhushan, learned counsel appearing on behalf of the appellant, would
submit that the learned Additional Civil Judge, Senior Division, Jagadhari, having opined
in its judgment and decree dated 30.10.1996 that not only Veena but also the appellants
and her other brothers and sisters were entitled to recovery of possession of the lands in
suit, the purported compromise entered into by and between the original plaintiff and
the contesting defendants must be held to be illegal and without jurisdiction. The learned
counsel submitted that for all intent and purport, the suit was filed by Veena in a
representative capacity and, thus, in absence of other heirs and legal representatives of
Munni Devi, the compromise petition could not have been accepted.

17. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the respondent,
on the other hand, would contend :

1) In terms of Order 23 Rule 1 of the Civil Procedure Code, it is the privilege of

the plaintiff alone to withdraw the suit at any stage of the proceedings and the
appellant being only one of the defendants did not have any locus standi to object
thereto.

2) Both the compromise petitions filed in Suit No. 185 of 1989 and Suit No. 303
of 1992 entered into by and between the parties should be treated to be a
comprehensive one keeping in view the representative right, title and interest
claimed by them in support of the properties involved in both the suits and in that
view of the matter the appellant herein being a party to the compromise petition
filed in Suit No. 303 of 1992 and having accepted the benefit arising out of the
same, is estopped and precluded from challenging the validity or otherwise of the
compromise petition filed in Suit No. 185 of 1989.

3) In any view of the matter, the appeal as against the respondent No. 19 having
been dismissed as his name was deleted at the risk and cost of appellant by order
dated 25.3.2008 and the said order having attained fanility, this Court should not
pass any order which would result in passing of inconsistent and contradictory
decrees.

18. Before adverting to the rival contentions of the parties, we may notice some
provisions of the Civil Procedure Code (the Code). Sub-rule (1) of Rule 1 of Order 23 and
Rule 3 of the Code read as under :

"1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after
the institution of a suit, the plaintiff may as against all or any of the defendants
abandon his suit or abandon a part of his claim :

Provided that where the plaintiff is a minor or other person to whom the
provisions contained in rules 1 to 14 of Order 32 extend, neither the suit nor any
part of the claim shall be abandoned without the leave of the Court.

XXX XXX XXX

3. Compromise of suit. - Where it is proved to the satisfaction of the Court that a

suit has been adjusted wholly or in part by any lawful agreement or compromise
 in writing and signed by the parties, or where the defendant satisfies the plaintiff
in respect of the whole or any part of the subject-matter of the suit, the Court
shall order such agreement, compromise or satisfaction to be recorded, and shall
pass a decree in accordance therewith so far as it relates to the parties to the
suit, whether or not the subject-matter of the agreement, compromise or
satisfaction is the same as the subject-matter of the suit :

Provided that where it is alleged by one party and dented by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the
question; but no adjournment shall be granted for the purpose of deciding the
question, unless the Court, for reasons to be recorded, thinks fit to grant such
adjournment.

Explanation. - An agreement or compromise which is void or voidable under the

Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within
the meaning of this rule."

19. It is not a case where the original plaintiff applied for withdrawal of the suit
similicitor. She did so relying on or on the basis of a compromise entered into by and
between the parties. If a suit is to be decreed or dismissed on the basis of a
compromise, even permission to withdraw the suit pursuant thereto, in our opinion,
Order 23 Rule 1 of the Code may not have any application. Even in such a case, a
permission to withdraw the suit could have been given only with notice to the
respondents who had become entitled to some interest in the property by reason of a
judgment and decree passed in the suit. The Court for the purpose of allowing
withdrawal of a suit after passing the decree, viz., at the appellate stage, is required to
consider this aspect of the matter. Veena, although was a plaintiff, did not claim any
exclusive title to the property in herself. She claimed title to the property as one of the
daughters of Munni Devi. Interest of the appellant and her other sisters and brothers
also stood on the same footing. They also, for all intent and purport, could have
independently maintained a suit either in their individual capacities or jointly.

20. The claim put forth by Raghbir Singh on the basis of an oral 'hiba' purported to have
been made by Banu Mal before the Revenue authorities was found to be tainted with
fraud. A finding of fact was arrived at that no such transaction had taken place as Banu
Mal was seriously ill and had been residing at some other place. The learned Trial Judge
also arrived at a finding that before the Revenue Authorities, a misrepresentation had
been made stating that Banu Mal was issueless.

21. Things as they stand now, there cannot be any doubt or dispute that the appellant is
one of the heirs and legal representatives of Banu Mal being a daughter of Munni Devi.
She, therefore, indisputably was entitled to a share in the property of Munni Devi as one
of her legal heirs. Even if Order 23, Rule 1 of the Civil Procedure Code was applicable, in
terms of Rule 1A of the said Order, the appellant as a defendant in the suit could have
applied for being transposed as a plaintiff in terms of Order 1 Rule 10 of the Civil
Procedure Code and the Court was bound to pass an order having due regard to the
question as to whether she had a substantial question to be decided as against any of
the other defendants. Appellant, indisputably, claimed and was found to have rightly
claimed a share in the suit property.

Having got a decree in her favour, she was entitled to protect the same. By reason of an
agreement between some of the parties or otherwise, a litigant cannot be deprived from
the fruit of the decree.
22. Order 23, Rule 3 of the Civil Procedure Code provides that a compromise decree is
not binding on such defendants who are not parties thereto. As the appeal has been
allowed by the High Court, the same would not be binding upon the appellant and, thus,
by reason thereof, the suit in its entirety could not have been disposed of.

23. The court has also a duty to prevent injustice to one of the parties to the litigation. It
cannot exercise its jurisdiction to allow the proceedings to be used to work as substantial
injustice.

A consent decree, as is well-known, is merely an agreement between the parties with

the seal of the court superadded to it. {See Baldevdas Shivlal and Another v.
Filmistan Distributors (India) P. Ltd. and Others [(1969)2 SCC 201], Parayya
Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari and Ors. [JT 2007(12)
SC 352]}.

24. If a compromise is to be held to be binding, as is well known, must be signed either

by the parties or by their counsel or both, failing which Order 23, Rule 3 of the Civil
Procedure Code would not be applicable.

{See Gurpreet Singh v. Chatur Bhuj Goel [(1988)1 SCC 270]}

In Dwarka Prasad Agarwal (D) By LRS. and Another v. B.D. Agarwal and Others,
2003(4) RCR(Civil) 258 : [(2003)6 SCC 230], this Court held :

"32. The High Court also failed and/or neglected to take into consideration the
fact that the compromise having been entered into by and between the three out
of four partners could not have been termed as settlement of all disputes and in
that view of the matter no compromise could have been recorded by it. The effect
of the order dated 29-6-1992 recording the settlement was brought to the notice
of the High Court, still it failed to rectify the mistake committed by it. The effect
of the said order was grave. It was found to be enforceable. It was construed to
be an order of the High Court, required to be implemented by the courts and the
statutory authorities.

35...Even if the provisions of Order 23 Rule 3 of the Civil Procedure Code and/or
principles analogous thereto are held to be applicable in a writ proceeding, the
Court cannot be permitted to record a purported compromise in a casual manner.
It was suo motu required to address itself to the issue as to whether the
compromise was a lawful one and, thus, had any jurisdiction to entertain the
same..."

{See also K. Venkatachala Bhat and Another v. Krishna Nayak (d) by LRs. and
Others, 2005(2) RCR(Civil) 356 : [(2005)4 SCC 117]}.

In R. Rathinavel Chettiar and Another v. V. Sivaraman and Others, 1999(2)

RCR(Civil) 447 : [(1999)4 SCC 89], this Court opined :

"22. In view of the above discussion, it comes out that where a decree passed by
the trial court is challenged in appeal, it would not be open to the plaintiff, at that
stage, to withdraw the suit so as to destroy that decree. The rights which have
come to be vested in the parties to the suit under the decree cannot be taken
away by withdrawal of the suit at that stage unless very strong reasons are
shown that the withdrawal would not affect or prejudice anybody's vested rights.
 The impugned judgment of the High Court in which a contrary view has been
expressed cannot be sustained."

25. It is also not a case where the compromise can be said to be a family arrangement.
A family arrangement must be entered into by all the parties thereto. Compliance of the
requirements laid down in Order 23, Rule 3 of the Civil Procedure Code is imperative in
character. A compromise or satisfaction must satisfy the conditions of a lawful
agreement.

26. Causes of action of both the suits furthermore were different. The subject matter of
the suit was also different although may be overlapping to some extent. If the
compromise entered into by and between the parties to Suit No. 303 of 1999 was to be
given effect to, the same for all intent and purport clearly goes to show that Bhanu Mal
had the title over the property. The learned Trial Judge in Suit No. 185 of 1989 having
found that Bhanu Mal did not pass his title by way of oral Hiba/gift in favour of Raghbir
Singh, subject to the conditions in the Will, his title must be held to have been accepted.
Bhanu Mal, therefore, could dispose of his property in accordance with law. If Raghbir
Singh did not acquire any title by reason of oral Hiba, on his death, subject to proof of
compliance of the terms of the Will, the same must be held to have vested in Munni Devi
and on her death upon her children.

27. Title to a property must be determined in terms of the statutory provision. If by

reason of the provisions of the Hindu Succession Act, 1956 the appellant herein had
derived title to the property along with her brothers and sisters, she cannot be deprived
thereof by reason of an agreement entered into by and between the original plaintiff and
the contesting defendants. If a party furthermore relinquishes his or her right in a
property, the same must be done by a registered instrument in terms of the provisions
of Indian Registration Act.

28. It is also well known that a suit cannot be withdrawn by a party after he acquires a
privilege. In R. Ramamurthy Ayer v. Raja V. Rajeswara Rao [(1972)2 SCC 721],
this Court held:

"12. Coming back to the question of withdrawal of a suit in which the provisions
of Sections 2 and 3 of the Partition Act have been invoked we find it difficult to
accede to the contention of the appellant that the suit can be withdrawn by the
plaintiff after he has himself requested for a sale under Section 2 of the Partition
Act and the defendant has applied to the court for leave to buy at a valuation the
share of the plaintiff under Section 3. In England the position about withdrawal
has been stated thus, in the Supreme Court Practice, 1970 at p. 334 :

"Before Judgment. - Leave may be refused to a plaintiff to discontinue the action

if the plaintiff is not wholly dominus litis or if the defendant has by the
proceedings obtained an advantage of which it does not seem just to deprive
him."

As soon as a shareholder applies for leave to buy at a valuation the share of the
party asking for a sale under Section 3 of the Partition Act he obtains an
advantage in that the court is bound thereafter to order a valuation and after
getting the same done to offer to sell the same to such shareholder at the
valuation so made. This advantage, which may or may not fulfil the juridical
meaning of a right, is nevertheless a privilege or a benefit which the law confers
on the shareholder. If the plaintiff is allowed to withdraw the suit after the
defendant has gained or acquired the advantage or the privilege of buying the
 share of the plaintiff in accordance with the provisions of Section 3(1) it would
only enable the plaintiff to defeat the purpose of Section 3(1) and also to deprive
the defendant of the above option or privilege which he has obtained by the
plaintiff initially requesting the court to sell the property under Section 2 instead
of partitioning it. Apart from these considerations it would also enable the plaintiff
in a partition suit to withdraw that suit and defeat the defendant's claim which,
according to Crump J., cannot be done even in a suit where the provisions of the
Partition Act have not been invoked."

Yet again in R. Rathinavel Chettiar v. V. Sivaraman [(1999)4 SCC 89], this Court,
stated the law, thus :

"22. In view of the above discussion, it comes out that where a decree passed by
the trial court is challenged in appeal, it would not be open to the plaintiff, at that
stage, to withdraw the suit so as to destroy that decree. The rights which have
come to be vested in the parties to the suit under the decree cannot be taken
away by withdrawal of the suit at that stage unless very strong reasons are
shown that the withdrawal would not affect or prejudice anybody's vested rights.
The impugned judgment of the High Court in which a contrary view has been
expressed cannot be sustained."

29. A right to withdraw a suit in the suitor would be unqualified, if no right has been
vested in any other party. [See Bijayananda Patnaik v. Satrughna Sahu and Ors.
[(1964)2 SCR 538] and Hulas Rai Baij Nath v. Firm K.B. Bass & Co. [(1967)3
SCR 886].

30. If the contention of Mr. Dwivedi that parties had entered into a comprehensive
agreement covering both the suits was correct, there was absolutely no reason as to
why the appellant or others were not made parties to the second consent decree as well.
While entering into a comprehensive agreement, the parties are bound to see that terms
of one agreement do not come in conflict with the terms and conditions of the other.
When the parties have separately entered into more than one agreement, either one is
dependant of the other or both are independent of each other. In the latter case, signing
of the agreement by the parties or their counsel thereon must be held to be imperative
in character.

Amteshwar Anand v. Virender Mohan Singh and Others, 2005(4) RCR(Civil) 485
: [(2006)1 SCC 148], whereupon reliance has been placed by Mr. Dwivedi, is a case of
family settlement. Three agreements entered into therein were found to be in
consonance with each other.

31. Herein, we are not concerned with the effect of the earlier litigation. We are also not
concerned with regard to the conduct of Smt. Veena Nirvani vis-a-vis the appellant and
the other defendants and/or as to whether the litigation was being fought through the
lawyers of the same chamber.

Both the suits were compromised. Indisputably, the date fixed in the matter was July,
1998. The impugned compromise petition, however, was filed on 25.04.1998. For the
aforementioned purpose, the date was preponed. Indisputably, the appellant was not
informed thereabout. She was not given any notice of preponement of the date. The
question as to whether the appellant knew thereabout or not is essentially a question of
fact to which we would advert to a little later. It is, however, difficult for us to agree with
the High Court as also the submissions of Mr. Dwivedi that the compromise was a
comprehensive one.
32. The learned Additional District Judge, on the basis of the materials brought on record
by the parties arrived at a finding of fact that the settlement was not a comprehensive
one. He, furthermore, opined that none of the respondents appeared in the witness box
to substantiate the terms and conditions of the compromise nor did they examine any
other witness. The purported circumstances that Smt. Veena Nirwani was at the helm of
the affairs in respect of both the matters sought to be emphasised before us being not
based on any material on record, we are of the opinion that the finding of the High Court
that a comprehensive settlement was arrived at must be held to be wholly incorrect.

33. The High Court moreover was exercising its jurisdiction under Article 227 of the
Constitution of India. While exercising the said jurisdiction, the High Court had a limited
role to play. It is not the function of the High court while exercising its supervisory
jurisdiction to enter into the disputed question of fact. It has not been found by the High
Court that the findings arrived at by the learned Additional District Judge were perverse
and/or in arriving the said findings, the learned Additional District Judge failed and/or
neglected to take into consideration the relevant factors or based its decision on
irrelevant factors not germane therefor. It could intervene, if there existed an error
apparent on the face of the record or, if any other well known principle of judicial review
was found to be applicable.

{See Yeshwant Sakhalkar and Another v. Hirabat Kamat Mhamai and Another
[(2004)6 SCC 71]}.

It is on the aforementioned backdrop, we may consider the legal effect of non-signing of

the compromise petition by the appellant herein as also the respondent Nos. 4 to 8
herein.

34. We have noticed hereinbefore that not only the properties were different, the nature
of the litigations was different. Even the parties were different. Both the compromise
petitions do not refer to each other. Assuming that the parties knew thereabout, it is
beyond anybody's comprehension as to why signature of all the parties were not
obtained for the aforementioned purpose, if not for any other reason, but to satisfy the
requirements of law.

35. Appeals arising out of Suit No. 185 of 1989 and Suit No. 303 of 1999 were pending
before different courts and in that view of the matter it is difficult to agree with the High
Court that only for that purpose, the date in the appeal was preponed. Even otherwise,
in law, they are not members of the same family. They have been inherited definite
share from their predecessors.

36. The question of estoppel and/or election as also the doctrine of approbate or
reprobate, whereupon reliance has been placed, has exceptions, one of them being that
there is no estoppel against statute.

37. Submission of the learned senior counsel that Veena and the appellant were in the
same boat as would appear from the fact that they had engaged lawyers from the same
chamber and, in fact, the lawyer of the appellant had no independent practice itself
would go to show that she knew about both the compromise petitions cannot be
accepted. A counsel appearing for a party is expected to be independent. There is no
presumption that only because two lawyers are practicing from the same chamber, they
would breach their confidentiality or commit some act which would amount to
professional misconduct. Only because two compromise petitions were filed on the same
day or Veena was a party to both of them, in our opinion, would not by itself lead to any
inference that appellant also knew about the second compromise through her counsel.
We would, however, deal with the question of her acquiring knowledge thereof at
appropriate stage.

38. Whether the preponement of the date was only at the instance of Veena or at the
instance of both the parties to the consent is a matter which is of little relevance so far
as this Court is concerned inasmuch as the only issue which would arise for our
consideration is the consequences of such preponement. If the hearing of a case is
preponed, it should be done with notice to all the parties. It is not the case of the first
respondent that notice had been given to all the parties or otherwise also they were
aware thereof.

39. In that view of the matter, it is difficult to accept the submission of Mr. Dwivedi that
the appellant is estopped and precluded from raising the said contention of violation of
the principles of natural justice or that only because he had sold some property, she
cannot be allowed to approbate and reprobate.

Our attention has been drawn to a recent decision in Kashmir Singh v. Union of India
& Ors., 2008(3) RCR(Civil) 668 : 2008(4) RAJ 313 : [(2008)7 SCC 259] wherein
this Court observed:

"75. By reason of the Notification dated 19-10-1978, the Central Government has
not delegated its power. The 1966 Act has an extraterritorial application. It is not
in dispute that no law has been enacted either by the State of Haryana or by the
State of Himachal Pradesh. In absence of any law having been enacted to the
contrary, the functions under the 1966 Act must be performed by some authority.
The Central Government with the consent of the State of Haryana has merely
nominated the State of Punjab to do so. By reason thereof, it has not delegated
any power. Sub-section (1) of Section 72 of the 1966 Act envisages a direction
upon the Central Government. Such a direction has been issued by reason of the
impugned notification. When a power has been conferred upon the State of
Punjab by the Central Government, it exercises a statutory power. It would,
therefore, not be a case where the functions of the State Government must be
held to be confined to its territorial jurisdiction."

The principle enunciated therein is unexceptional but the same has no application in the
factual matrix obtaining in this case.

40. The submission of Mr. Dwivedi that by reason of conduct of the appellant, they would
be deemed to have ratified the second compromise also cannot be accepted. It is not a
ratification of a contract. If ratification has to be done, all should be parties thereto. If
the court had no jurisdiction to accept the compromise in defiance of the mandatory
provisions contained in Order 23 Rule 3 of the Civil Procedure Code, the question of
invoking the doctrine of ratification would not arise. The doctrine of ratification may be
applicable in the realm of private law regime but not for the purpose of amendment or
modification of a decree. Reliance has been placed by Mr. Dwivedi on Jai Narain
Parasrampuria v. Pushpa Devi Saraf [(2006)7 SCC 756], wherein it has been
held :

"27. The Company upon incorporation has accepted the contract and
communicated such acceptance to the other party. Besides that, purchase of the
property was for the purpose of the Company. Submissions of Mr. Sudhir Chandra
that acquisition of a property for the benefit of the Company must find place in
the articles of association of the Company, is wholly misplaced. What is meant by
 acceptance of the contract by the Company which is to be warranted by its
incorporation, is that it is not ultra vires the purpose for which the Company had
been incorporated. The distinction sought to be made by the learned counsel
between Section 27 of the Specific Relief Act, 1877 and Section 19 of the 1963
Act is not of much significance. Under the 1877 Act, not only ratification and
adoption of the contract was mandatory, such contract was to be warranted by
the terms of the incorporation. The words "ratified and adopted" have been
dropped from the main section and in Section 19 of the 1963 Act, a proviso has
been added that the company has accepted the contract and communicated such
acceptance to the other party of the contract. An express ratification of the
contract, therefore, is no longer warranted. In view of the fact that the Company,
in the suit filed against Verma, sought for a declaration that it was the owner of
the property, the same, in our opinion, would amount to acceptance of the
contract and communication thereof to the other party thereto."

The dicta laid down therein itself suggests that the said principles were laid down in the
context of the provisions of the Specific Relief Act. In T.V.R. Subbu Chetty's Family
Charities v. Raghava Mudaliar [ AIR 1961 Supreme Court 797], whereupon again
Mr. Dwivedi places reliance, this Court applied the said doctrine against a presumptive
reversioner having regard to the fact and circumstances thereof. We are not concerned
with such a case.

41. This brings us to the question of limitation. Article 123 of the Schedule appended to
the limitation Act reads, thus :

Time from which period

Period of
"Description of suit
limitation begins to run

123 To set aside a decree passed ex

parte or to re-hear an appeal
The date of the decree or
decreed or heard ex parte.
where the summons or
Explanation. - For the purpose of
Thirty days notice was not duly served,
this article, substituted service
when the applicant had
under Rule 20 of Order 5 of the
knowledge of the decree."
Civil Procedure Code, 1908 shall
not be deemed to be due service.

42. There cannot be any doubt that even if an order is void or voidable, the same must
be set aside, as has been held by this Court in M. Meenakshi v. Metadin Agarwal
[(2006)7 SCC 470] and Sultan Sadik v. Sanjay Raj Subba, 2004(1) RCR(Civil)
767 : 2004(3) SCT 395 : [(2004)2 SCC 377].

43. It is not a case where the Court lacked inherent jurisdiction. It had jurisdiction with
regard to subject matter of appeal.

In Rajasthan State Road Transport Corporation and others v. Zakir Hussain,

2005(4) SCT 107 : [(2005)7 SCC 447], this Court held :
 "21. It is a well-settled principle of law as laid down by this Court that if the court
has no jurisdiction, the jurisdiction cannot be conferred by any order of court.
This Court in the case of A.R. Antulay v. R.S. Nayak, AIR paras 40 to 42
wherein it is, inter alia, held and observed as under :

'38[40]. ... This Court, by its directions could not confer jurisdiction on the High
Court of Bombay to try any case which it did not possess such jurisdiction....

39[41]. ... The power to create or enlarge jurisdiction is legislative in character....

Parliament alone can do it by law and no court, whether superior or inferior or
both combined can enlarge the jurisdiction of a court or divest a person of his
rights of revision and appeal. ...

40[42]. ... But the superior court can always correct its own error brought to its
notice either by way of petition or ex debito justitiae. See Rubinstein's Jurisdiction
and Illegality.'"

The limitation, however, in a case of this nature would not begin to run from the date of
knowledge.

In State of Punjab and Others v. Gurdev Singh, 1991(3) SCT 91 : [(1991)4 SCC
1], this Court held :

"10. It will be clear from these principles, the party aggrieved by the invalidity of
the order has to approach the court for relief of declaration that the order against
him is inoperative and not binding upon him. He must approach the court within
the prescribed period of limitation. If the statutory time limit expires the court
cannot give the declaration sought for."

44. Mr. Jayant Bhushan would submit that the limitation would start to run from the date
of knowledge. It is difficult to accept the said contention. Article 123 of the Limitation Act
is in two parts. In a case where summons have been served upon a party, the first part
shall apply. However, in a case where the summons have not been served, the second
part shall apply. In this case, summons were served upon the appellant. They knew
about the proceedings. They had engaged a lawyer. Indisputably, the case was fixed in
July 1998. The only question, which would, thus, arise for our consideration is the effect
of the preponement of the date.

45. If the compromise has been accepted in absence of all the parties, the same would
be void. But if the same having resulted in grant of a decree, the decree based on
compromise was required to be set aside. The compromise may be void or voidable but
it is required to be set aside by filing a suit within the period of limitation. {[See Mohd.
Noorul Hoda v. Bibi Raifunnisa & Ors. [(1996)7 SCC 767]}. Limitation is a statute
of repose. If a suit is not filed within the period of limitation, the remedy would be
barred. As appellant had appeared in the appeal, as indicated hereinbefore, the first part
shall apply. The suit was filed on 28.2.2002, i.e., after a gap of four years. There is no
reason as to why the factum in regard to passing of the decree could not have been
known in July or soon thereafter.

46. The High Court has arrived at a finding of fact that the appellant cannot be said to
have acquired knowledge about the passing of the decree on 7.2.2002, stating :

"... If the said compromise deed dated 24.4.1998 was passed by preponing the
appeal fixed in July 1998 her counsel Shri Lalit Gupta could have come to know in
 July 1998 itself which was the original date fixed in this appeal that this appeal
was preponed and compromise decree was passed on 25.4.1998. He could have
informed Smt. Sneh Gupta Respondent immediately thereafter. No reasons have
been given by Shri Lalit Gupta for not deriving the knowledge of order dated
25.4.1998 in July 1998 when the file was originally fixed and when he was
supposed to appear in the Appellate Court. He has also not given the reasons why
he did not inform his party after coming to know in July 1998 that the said appeal
was preponed to 25.4.1998 and was decided as compromised."

It is interesting to notice that the appellant while examining herself as AW- 2, accepted
that a compromise had been arrived at Panipat in April 1998, stating :

"It is correct that a compromise settlement was arrived at in Panipat in April 1998
but I do not know details of it. I do not know whether in pursuance of that
compromise, all the litigation were settled and withdrawn from different courts..."

47. Mr. Jayant Bhushan has placed strong reliance upon a judgment of this Court in
Nahar Enterprises v. Hyderabad Allwyn Ltd. & Anr., 2007(2) RCR(Civil) 413 :
2007(1) RCR(Rent) 345 : 2007(2) RAJ 52 : [(2007)9 SCC 466]. He placed reliance
on the following paragraphs :

"4. The respondent herein filed a suit for recovery of a sum of Rs. 1,87,904.62
with future interest at the rate of 18.5% per annum against the appellant. It
appears that in the summons sent to the appellant, 10-10-1988 was fixed for his
appearance. However, as the summons had not been served, the court adjourned
the matter to 2- 12-1988. Summons were served on the appellant on 14-10-
1988, but according to him a copy of the plaint was not annexed thereto. He sent
a telegram on 17-10-1988 and also a letter to the court concerned but,
admittedly, the same was not responded to. Without issuing any further
summons fixing another date for his appearance, the court fixed a date and
having found the appellant absent on that date, fixed another date for ex parte
hearing. On 13-12-1988 the suit was decreed with costs.

5. An execution case was filed by the respondent herein to execute the said
decree. According to the appellant, the bailiff came to serve a copy of summons
on him on 2-12-1991. The said summons having been served upon the appellant,
he came to learn that ex parte decree has been passed. An application for setting
aside the said ex parte decree was filed on 13-12- 1991. By an order dated 17-1-
1992 the learned Judge, City Civil Court, Hyderabad dismissed the said
application inter alia opining :

(1) ...

(2) ...

(3) An ex parte decree having been passed on 13-12-1988 and an application for
setting aside the ex parte decree having been filed on 13-12- 1991, the same
was barred by limitation.

XXX XXX XXX

 12. The third ground on which the learned trial Judge dismissed the application
for setting aside the ex parte decree was that it was barred by limitation. The said
ground in our opinion, is also without substance. The summons had not been duly
served upon the appellant inasmuch as the provisions of Order 5 Rule 2 Civil
Procedure Code or provisions of Order 9 Rule 6(1)(c) had not been complied with.
In that view, the second part of Article 123, in terms whereof an applicant would
be deemed to have knowledge of passing of the said ex parte decree would be
the date from which the limitation will begin to run, would be attracted in the
instant case and not the first part thereof."

In that case, the copy of the plaint was not annexed with the summons. Summons was
served after the date fixed in the suit expired. The Court had in that situation under a
legal obligation to serve another summons fixing another date of hearing in terms of
Order 5, Rule 2 of the Civil Procedure Code. It was in the aforementioned fact situation,
the Court held that the summons served was not in accordance with law and, thus, the
second part shall apply. Such is not the case here.

Reliance has also been placed by Mr. Jayant Bhushan on a decision of this case in
Manick Chandra Nandy v. Debdas Nandy & Ors. [(1986)1 SCC 512]. The law in
that case itself was laid down in the following terms :

"11. Under Article 123 in the Schedule to the Limitation Act, 1963, the period of
limitation for making an application to set aside a decree passed ex parte is thirty
days from the date of the decree or when the summons or notice was not duly
served, when the applicant had knowledge of the decree. The question of
knowledge of the decree by the applicant only arises where the summons or
notice was not been duly served."

However, in the facts of that case, it was found that summons had not been served. In
Pannalal v. Murarilal [(1967)2 SCR 757], this Court held:

"Under Article 164 of the Indian Limitation Act, 1908, the period of limitation for
an application by a defendant for an order to set aside a decree passed ex-parte
was 30 days from "the date of the decree or when the summons was not duly
served, when the applicant had knowledge of the decree". The onus is on the
defendant to show that the application is within time and that he had knowledge
of the decree within 30 days of the application. If the defendant produces some
evidence to show that the application is within time, it is for the plaintiff to rebut
this evidence and to establish satisfactorily that the defendant had knowledge of
the decree more than 30 days before the date of the application."

48. Mr. Jayant Bhushan, then submits that as the principles of natural justice had been
violated, the judgment would be a nullity. Strong reliance in this behalf has been placed
on A.R. Antulay v. R.S. Nayak & Anr. [(1988)2 SCC 602], wherein, it was stated :

"55. Shri Jethmalani urged that the directions given on February 16, 1984, were
not per incuriam. We are unable to accept this submission. It was manifest to the
Bench that exclusive jurisdiction created under Section 7(1) of the 1952 Act read
with Section 6 of the said Act, when brought to the notice of this Court, precluded
the exercise of the power under Section 407 of the Code. There was no
argument, no submission and no decision on this aspect at all. There was no
 prayer in the appeal which was pending before this Court for such directions.
Furthermore, in giving such directions, this Court did not advert to or consider the
effect of Anwar Ali Sarkar case which was a binding precedent. A mistake on the
part of the court shall not cause prejudice to anyone. He further added that the
primary duty of every court is to adjudicate the cases arising between the parties.
According to him, it is certainly open to a larger Bench to take a view different
from that taken by the earlier Bench, if it was manifestly erroneous and he urged
that the trial of a corrupt Chief Minister before a High Court, instead of a judge
designated by the State Government was not injurious to public interest that it
should be overruled or set aside. He invited us to consider two questions : (1)
does the impugned order promote justice ? and (2) is it technically valid ? After
considering these two questions, we are clearly of the opinion that the answer to
both these questions is in the negative. No prejudice need be proved for
enforcing the fundamental rights. Violation of a fundamental right itself renders
the impugned action void. So also the violation of the principles of natural justice
renders the act a nullity. Four valuable rights, it appears to us, of the appellant
have been taken away by the impugned directions :

'(i) The right to be tried by a Special Judge in accordance with the procedure
established by law and enacted by Parliament.

(ii) The right of revision to the High Court under Section 9 of the Criminal Law
Amendment Act.

(iii) The right of first appeal to the High Court under the same section.

(iv) The right to move the Supreme Court under Article 136 thereafter by way of
a second appeal, if necessary.'"

We are concerned herein with a question of limitation. The compromise decree, as

indicated hereinbefore, even if void was required to be set aside. A consent decree, as is
well known, is as good as a contested decree. Such a decree must be set aside if it has
been passed in violation of law. For the said purpose, the provisions contained in the
Limitation Act, 1963 would be applicable. It is not the law that where the decree is void,
no period of limitation shall be attracted at all.

In State of Rajasthan v. D.R. Laxmi [(1996)4 SCC 445], this Court held :

"10. The order or action, if ultra vires the power, becomes void and it does not
confer any right. But the action need not necessarily be set at naught in all
events. Though the order may be void, if the party does not approach the Court
within reasonable time, which is always a question of fact and have the order
invalidated or acquiesced or waived, the discretion of the Court has to be
exercised in a reasonable manner. When the discretion has been conferred on the
Court, the Court may in appropriate case decline to grant the relief, even if it
holds that the order was void. The net result is that extraordinary jurisdiction of
the Court may not be exercised in such circumstances.

It is seen that the acquisition has become final and not only possession had
already been taken but reference was also sought for; the award of the Court
under Section 26 enhancing the compensation was also accepted. The order of
the appellate court had also become final. Under those circumstances, the
 acquisition proceedings having become final and the compensation determined
also having become final, the High Court was highly unjustified in interfering with
and in quashing the notification under Section 4(1) and declaration under Section
6."

Yet again, in M. Meenakshi v. Metadin Agarwal [(2006)7 SCC 470], this Court
held :

"18. It is a well-settled principle of law that even a void order is required to be

set aside by a competent court of law inasmuch as an order may be void in
respect of one person but may be valid in respect of another. A void order is
necessarily not non est. An order cannot be declared to be void in a collateral
proceeding and that too in the absence of the authorities who were the authors
thereof. The orders passed by the authorities were not found to be wholly without
jurisdiction. They were not, thus, nullities."

Yet again, in Sultan Sadik v. Sanjay Raj Subba [(2004)2 SCC 377], this Court
held :

"39. An order may be void for one and voidable for the other. An invalid order
necessarily need not be non est; in a given situation it has to be declared as
such. In an election petition, the High Court was not concerned with the said
issue."

49. Even otherwise, we do not think that any error has been committed by the High
Court in arriving at the finding that the appellant had knowledge of the passing of the
compromise decree much earlier. She did not file any application for condonation of
delay. She filed two more applications for recall of the order dated 6.11.2004 in other
enacted appeals. Those applications were also filed after expiry of the period of limitation
and none of those applications were also accompanied with an application for
condonation of delay. In absence of any application for condonation of delay, the Court
had no jurisdiction in terms of Section 3 of the Limitation Act, 1963 to entertain the
application for setting aside the decree. [See Dipak Chandra Ruhidas v. Chandan
Kumar Sarkar [(2003)7 SCC 66] and Sayeda Akhtar v. Abdul Ahad, 2003(2)
RCR(Rent) 213 : [(2003)(7) SCC 52].

50. For the reasons aforementioned, there is no merit in this appeal. The same is
dismissed accordingly. There shall, however, be no order as to costs.

Appeal dismissed.