1990 (10) TMI 383 - HC - Indian Laws

Dismissal of Writ Petition with Costs for Lack of Clean Hands and Concealment of Facts

The court dismissed the writ petition with costs, holding that the petitioner's application under Order 9 Rule 13 read with Section 151 was not ... - Issues Involved:1. Maintainability of the application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure.2. Allegation of fraud in obtaining the compromise decree.3. Jurisdiction of the High Court under Article 226 of the Constitution of India.4. Applicability of Order 23 Rule 3-A of the Code of Civil Procedure.Detailed Analysis:Issue 1: Maintainability of the Application under Order 9 Rule 13 read with Section 151 of the Code of Civil ProcedureThe petitioner challenged the orders of the Munsif Magistrate and the District Judge, which rejected her application to set aside an ex parte decree. The courts below held that the appropriate remedy was to file a regular suit, which the petitioner had already done. The appellate court distinguished the case from Suraj Deo v. Board of Revenue, noting that the petitioner had already filed a suit for revoking the compromise decree. The court concluded that an application under Order 9 Rule 13 read with Section 151 was not maintainable at the instance of the petitioner.Issue 2: Allegation of Fraud in Obtaining the Compromise DecreeThe petitioner alleged that the compromise decree was obtained by fraud, with forged signatures of her husband, Nagarmal. The counter-affidavit by respondent No. 3 disclosed that Nagarmal had earlier agreed to vacate the shop as a licensee and had filed applications seeking time to vacate. The court found contradictions in the rejoinder affidavit filed by the petitioner's son, Om Prakash, and noted that Nagarmal himself never challenged the proceedings or alleged forgery. The court concluded that the petitioner was trying to fight a second innings after Nagarmal had already lost the first.Issue 3: Jurisdiction of the High Court under Article 226 of the Constitution of IndiaThe court emphasized that the extraordinary jurisdiction under Article 226 is discretionary and should be exercised only in exceptional cases where a fundamental right is infringed, or an illegal or arbitrary order has caused injustice. The court found that the petitioner had concealed material facts and approached the court with unclean hands. Therefore, the petitioner was not entitled to invoke this jurisdiction.Issue 4: Applicability of Order 23 Rule 3-A of the Code of Civil ProcedureThe petitioner argued that Order 23 Rule 3-A bars a suit to set aside a decree based on an unlawful compromise. The court clarified that this provision is confined to parties to the suit and does not apply to strangers. A suit by a stranger to set aside a compromise decree affecting their rights is not barred by this provision. The court held that the petitioner's suit for setting aside the compromise decree was maintainable and that Order 23 Rule 3-A did not bar her from filing the suit.Conclusion:The court dismissed the writ petition with costs, concluding that the petitioner had not approached the court with clean hands and had concealed material facts. The court quantified the costs at Rs. 2000. The court held that the application under Order 9 Rule 13 read with Section 151 was not maintainable and that the petitioner should pursue the remedy of filing a regular suit, which she had already availed. The court also found that the allegations of fraud could not be decided in a miscellaneous application and required a detailed examination in a regular suit.