Bhaskaran Nair v. A.J. Joseph

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2022-07-26
Court Decision / Holding: The original petition fails and is dismissed.
Final Disposition: Original petition dismissed.

Parties to the Case

Appellants / Petitioners

Bhaskaran Nair

Respondents

A.J. Joseph

Legal Representation & Advocates

Counsels for Petitioners

• P. K. Muraleedharan

Counsels for Respondents

• Liji J. Vadakedom

Case Synopsis & Summary

The petition is an OP(C) challenging an earlier compromise decree in O.S. No. 1/2014 (Ext. P4). The respondent filed suit seeking recovery of Rs. 34,20,000 with interest; the parties executed a compromise on 09.04.2014, leading to a decree on 11.04.2014. Eight months later, the petitioner—then incapacitated and represented by his wife as his next friend—filed Ext. P5 on 16.12.2014 to set aside the compromise decree, alleging fraud and manipulation in the compromise petition. The respondent objected (Ext. P6). The petitioner’s counsel relinquished vakalath on the eve of the written statement; Ext. P5 was filed by his wife, who testified as PW1, and two counsel-witnesses testified (CW1, CW2) that the petitioner had signed the compromise after the terms were read to him. CW2 stated that the petitioner’s vakalat was signed in her presence and that he voluntarily executed the compromise petition. The court below, by Ext. P7, dismissed Ext. P5. The High Court held there was no illegality in Ext. P7 and that Ext. P5 was improperly filed by the petitioner’s wife without leave of court, observing the petitioner’s failure to testify and noting the best evidence lies with the counsel who signed the compromise, citing Jacob K.B. v. Najma Barneto. The petition is dismissed as lacking merit, reaffirming the sanctity of compromise decrees under Order XXIII CPC, 1908 and keeping intact the decree.

Provisions of Law Cited

Order XXIII, Code of Civil Procedure, 1908Article 227, Constitution of India

Legal Doctrines & Maxims

Best person to prove vitiating circumstances of a compromise is the counsel who appeared and signed the compromise petition.
Setting aside a compromise decree should not be treated as a routine exercise, or it would render Order XXIII CPC a dead letter.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the compromise decree was obtained by fraud and manipulation in the compromise petition. His wife, acting as his next friend without leave of court, filed Ext. P5 to set aside the decree; the petitioner was ill and did not testify, yet the compromising documents were signed. It was argued that the best evidence on alleged fraud lies with the counsel who signed the compromise petition, which the court should consider in light of Jacob K.B. v. Najma Barneto. The petitioner asserts that Ext. P7 dismissing Ext. P5 undermines the integrity of Order XXIII CPC and seeks to reopen the decree only to avoid cross-examination; however, the court should provide opportunity for genuine fraud to be proven.

Contentions of Respondents

The respondent asserts that the compromise decree was validly executed and that Ext. P5 was filed by the petitioner’s wife without proper leave of the court. The respondent argues that the petition fails on its own terms, that the trial court properly rejected Ext. P5 and that the evidence presented does not establish fraud. The respondent relies on the regularity of the compromise decree and urges finality in accordance with Order XXIII CPC; the objection to Ext. P5 is well-founded, and the court should not intervene.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Jacob K.B v. Najma Barneto and others	2010 (3) KHC 509	Positive	Court relied on this decision to hold that the best person to prove vitiating circumstances leading to a compromise is the counsel who appeared on behalf of the party and signed the compromise petition.

Extracted Judgment Text

Exact text extracted from official judgment records.

OP(C) NO. 2552 OF 2018 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 OP(C) NO. 2552 OF 2018** **AGAINST THE ORDER/JUDGMENT OS 1/2014 OF PRINCIPAL SUB** **COURT, KOTTAYAM** ## **PETITIONER/S:** BHASKARAN NAIR AGED 84 YEARS S/O. NARAYANAN PILLAI, ANANDAMANDIRAM HOUSE, KEEZHOOR KARA, MULAKULAM VILLAGE, VAIKOM TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HIS WIFE SARAMMA P.G., AGED 71, ANANDAMANDIRAM HOUSE, KEEZHOOR KARA, MULAKULAM VILLAGE, VAIKOM TALUK. BY ADV P.K.MURALEEDHARAN ## **RESPONDENT/S:** A.J.JOSEPH AGED 66 YEARS S/O. JOHN, ALUMKAL HOUSE, ANICKAD EAST P.O., PALLICKATHODU, ANICKADU VILLAGE, KOTTAYAM TALUK, PIN - 686 503. BY ADV SRI.LIJI.J.VADAKEDOM THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 2552 OF 2018 2 ## **JUDGMENT** The petitioner assails the order in I.A.No.2448/2017 in O.S.No.1/2014 (Ext.P7) of the Court of the Principal Subordinate Judge, Kottayam. 2. The skeletal facts, relevant for the determination of the original petition, are : the petitioner is the defendant in the above suit, filed by the respondent for a decree for return of advance sale consideration and consequential reliefs. Even though the petitioner appeared through a counsel before the Court below, he had not filed any written statement. His counsel had relinquished his vakalath on the eve of filing of the written statement. Subsequently, a compromise petition was drafted without the knowledge or consent of the petitioner. The compromise petition reveals the fraud and cheating perpetrated on the petitioner. In the said OP(C) NO. 2552 OF 2018 3 circumstances, the petitioner had filed Ext.P5 application, to set aside Ext.P4 compromise decree, through his wife and power of attorney holder, since the petitioner was laid up and was incapable of appearing in Court. The respondent had filed Ext.P6 objection to Ext.P5 application. The petitioner's wife was examined as PW1 and Exts.A1 to A5 were marked through her. The counsel, who was appearing for the petitioner before filing the written statement, was examined as CW1. The counsel who attested the compromise petition was examined as CW2 and Exts.C1 to C4 were marked through her. The respondent produced and marked Exts.B1 and B3. The Court below, by the impugned Ext.P7 order, has dismissed Ext.P5 application. Ext.P7 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.P.K.Muraleedharan, the learned counsel appearing for the petitioner and Sri.Liji OP(C) NO. 2552 OF 2018 4 J.Vadakedom, the learned counsel appearing for the respondent. 4. The point is that there is any illegality in Ext.P7 order. 5. The pleadings and materials on record, show that Ext.P1 plaint was filed on 24.12.2013 by the respondent, against the petitioner, for a decree to recover an amount of Rs.34,20,000/- with interest. The petitioner and the respondent executed the compromise petition on 09.04.2014, which is appended to Ext.P4 decree. On the strength of the compromise petition, the Court below, decreed the suit. 6. It is eight months later, that the petitioner got enlightened of the alleged fraud. He through his wife, acting as his next friend, filed Ext.P5 application on 16.12.2014 to set aside Ext.P4 OP(C) NO. 2552 OF 2018 5 decree. The same was objected to by the respondent, who filed Ext.P6 objection. But, the Court below, by Ext.P7 order, dismissed Ext.P5. 7. The most critical and curious aspect of the whole episode is that, Ext.P5 application has been filed by the petitioner's wife, acting as his next friend and without leave of the Court. Further, the petitioner refused to mount the witnesses and let in evidence regarding the alleged fraud and manipulation committed by the respondent and his counsel. Instead, it was his wife, who was examined as PW1. The petitioner's two counsel, namely Sri.N.T.Gopakumar and Smt. Deepthi S. Nath were examined as CWs 1 and 2. CW2 has categorically deposed before the Court below, that the petitioner had signed the vakalath in her presence and she read out the terms and conditions of the compromise. Thereafter, the petitioner signed the OP(C) NO. 2552 OF 2018 6 compromise petition. 8. The best and cardinal witness who could speak about the alleged manipulation and fraud was the petitioner himself. He refused to mount the witness box on the feigned ground of illness. The compromise petition was signed on 09.04.2014, the decree was passed on 11.04.2014 and Ext.P5 application was filed on 16.12.2014. It is during this short period that the petitioner has alleged that he got indisposed. This Court perceives that, it was only to evade the cross- examination, that the petitioner conveniently made his wife file the application, without any authority, and made her let in evidence in a matter in which she had no knowledge. In a case where an heinous allegation of fraud is averred, it was imperative for the petitioner to give evidence as heavy burden is cast on his shoulders. Therefore, I am left with no other alternative, but to draw OP(C) NO. 2552 OF 2018 7 adverse inference against the petitioner. ## 9. This Court in **Jacob K.B vs. Najma Barneto** **and others** [2010 (3) KHC 509], has emphatically held that, in a case alleging vitiating circumstances leading to a compromise, the best person to prove the aspect is the counsel, who appeared on behalf of the party and signed the compromise petition. 10. In the instant case, CW2 has in unequivocal terms testified that she had read out the terms and conditions of the compromise to the petitioner and he voluntarily executed the compromise petition in her presence. On an overall consideration of the matter, this Court is of the firm view that Ext.P5 application was filed at the instance of the petitioner, through his next friend and his wife, only to wriggle out of the compromise. The passing of a compromise decree is 8 OP(C) NO. 2552 OF 2018 a serious matter and is not something that can be set aside at the whims and caprice of the party. If the course is permitted it will render Order XXIII of the Code of Civil Procedure, 1908 a dead letter and lead to chaotic situations. I do not find any error or illegality in Ext.P7 order warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. SD/- **C.S.DIAS, JUDGE** rkc/26.07.22 OP(C) NO. 2552 OF 2018 9 ## **APPENDIX OF OP(C) 2552/2018** PETITIONER EXHIBITS |EXHIBIT P1|A TRUE COPY OF THE PLAINT DATED| |---|---| ||24.12.2013 IN O.S NO.1/2014 BEFORE| ||THE HONOURABLE SUB COURT KOTTAYAM| |EXHIBIT P2|A TRUE COPY OF THE LEGAL NOTICE DATED| ||NIL| |EXHIBIT P3|A TRUE COPY OF THE REPLY NOTICE DATED| ||15.10.2013| |EXHIBIT P4|A TRUE COPY OF THE COMPROMISE DECREE| ||DATED 11.04.2014 AND THE ATTACHED| ||COMPROMISE PETITION IN O.S NO.1/2014| |EXHIBIT P5|A TRUE COPY OF THE PETITION I.A| ||NO.2448/2014 DATED 16/12/2014 TO SET| ||ASIDE THE COMPROMISE DECREE AND| ||JUDGMENT DATED 11/4/2014 IN O.S| ||NO.1/2014| |EXHIBIT P6|A TRUE COPY OF THE OBJECTION DATED| ||2/7/2015 TO THE PETITION I.A| ||NO.2448/2014 IN O.S NO.1/2014.| |EXHIBIT P7|A TRUE COPY OF THE ORDER DATED| ||27/2/2018 IN THE PETITION I.A| ||NO.2448/2014 IN O.S NO.1/2014| |EXHIBIT P8|A TRUE COPY OF THE E.P NO.208/2014 IN| ||OS.NO.1/2014|