Chandrika @ Chandrakumari v. K. Krishnamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 03RD DAY OF MARCH 2021/12TH PHALGUNA, 1942** **RSA.No.922 OF 2020** **AS 16/2020 OF DISTRICT COURT, ERNAKULAM DTD.10.7.2020 OS 1298/2014 OF I ADDITIONAL MUNSIFF COURT, ERNAKULAM DTD.15.10.2015** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 CHANDRIKA @ CHANDRAKUMARI, AGED 59 YEARS, W/O MOHANAN, CHERUVELIL HOUSE, CHITTOOR, CHERANELLOOR VILLAGE, ERNAKULAM DISTRICT, PIN-682027. 2 MOHANAN, AGED 69 YEARS, S/O KRISHNAN KUTTY MENON, CHERUVELIL HOUSE, CHITTOOR, CHERANELLOOR VILLAGE, ERNAKULAM DISTRICT, PIN-682027.** ## **BY ADV. SRI.M.RETHEESHKUMAR** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **K.KRISHNAMMA, W/O.ADVOCATE THULASEEDHARAN PILLAI, KRISHNA THULASI, DIVINE NAGAR, CHITTOOR.P.O, CHERANELLOOR VILLAGE, ERNAKULAM DISTRICT, PIN-682027, REPRESENTED BY POWER OF ATTORNEY HOLDER - ADVOCATE V.THULASEEHDARAN PILLAI.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2021, THE COURT ON 03-03-2021 DELIVERED THE FOLLOWING:** R.S.A.No.922 of 2020 ..2.. ## **JUDGMENT** The appellants are the defendants in O.S.No.1298/2014 on the file of the Munsiff's Court-II, Ernakulam (hereinafter referred to as 'the trial court') and the appellant in A.S.No.16/2020 on the file of the District Court, Ernakulam (hereinafter referred to as 'the first appellate court'). The parties are hereinafter referred to as the plaintiff and defendants according to their status in the trial court unless otherwise stated. 2. The first appeal was filed along with an application to condone the delay of 1599 days in filing the appeal. The suit was referred to mediation and it was settled at mediation and a compromise decree was passed as early as on 15.10.2015. The appeal ought to have been filed before 14.11.2015. However, it was filed only on 12.2.2020. R.S.A.No.922 of 2020 **==> picture [22 x 8] intentionally omitted <==** 3. According to the defendants, the plaintiff played fraud on the court and a compromise decree was obtained. Immediately after noticing the decree, the defendants initiated all the legal means to set aside the judgment and decree. However, they could not succeed. The defendants filed E.A.No.314/2019 and E.A.No.315/2019 to set aside the decree before the executing court. However, those applications were dismissed. 4. The first appellate court passed an order dismissing I.A.No.1/2020 to condone the delay on 10.7.2020. Accordingly, A.S.No.16/2020 challenging the compromise decree was also dismissed. Challenging the decree of the first appellate court, the defendants have preferred this second appeal. 5. Relying on **Triloki Nath Singh v. Anirudh Singh (Dead) through legal representatives & others** R.S.A.No.922 of 2020 ..4.. [(2020) 6 SCC 629], **Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (Dead) through L.Rs.,** [2012 (3) SCALE 550], **Ramesh Chaturvedi v. State of U.P. through Collector Faizbad & others** [2020 KHC 2266], **Gowrishankar & another v. Joshi Amba Shankar Family Trust & Others** [1996 KHC 769], **S.P.Chengalvaraya Naidu v. Jagannath & Others** [1995 KHC 182], **Banwari Lal v. Smt.Chando Devi (through L.R.) & Another** [1993 KHC 880] and **Pandit Dhareshwarji's Ashram School, Begumpet v. Arya Pratinidhi Sabha, Hyderabad, A.P.** [Laws (APH) 2007 376], the learned counsel for the appellants contended that the compromise decree was obtained by playing fraud on the defendants and thus the defendants are entitled to get it challenged in appeal in accordance with law. The learned counsel for the appellants further contended that the fraud vitiates everything and fraud and justice never dwell R.S.A.No.922 of 2020 ..5.. together. Hence, the appellants seek urgent intervention of this Court in the subject matter. It is contended that the power of attorney holder of the plaintiff cannot initiate action against the defendants on the date of suit and hence the plaint itself is illegal. 6. Heard the learned counsel for the appellants. 7. In this case, the first appeal was preferred with an application to condone the delay of 1599 days. Admittedly, a compromise decree was passed by the trial court based on the mediation process initiated in accordance with law. Mediation is one of the recognized modes of Alternative Dispute Redressal System and an initial presumption is attached to the compromise entered into between the parties before the mediators in accordance with rules. The compromise was acted upon by the court on the judicial side. Accordingly a compromise decree was passed. This decree was challenged in appeal R.S.A.No.922 of 2020 ..6.. along with a delay condonation application to condone the delay of 1599 days. 8. The first appellate court has considered the following points for disallowing the application to condone the delay.:- - 1) I.A.No.4919/2016 was filed before the trial court to set aside the decree and judgment and it was dismissed on 16.10.2016. - 2) The said order was challenged before this Court in O.P.(Civil)No.28/2017. The said O.P. was dismissed. - 3) The review petition filed before this Court as Review Petition No.315/2019 was also dismissed on 03.04.2019. - 4) Thereafter the defendants filed two petitions before the executing court as E.A.No.314/2019 and E.A.No.315/2019 to set aside the decree. Those applications R.S.A.No.922 of 2020 ..7.. were dismissed on 28.9.2019. The said order is under challenge before this Court in O.P.(C)No.2790/2019 which is still pending. - 5) The defendants have been challenging the judgment and decree on the ground of fraud since 2014. 9. In view of the above facts and circumstances, the first appellate court is of the view that though a liberal approach is to be adopted in the matter of condonation of delay, the liberal approach cannot be taken in this case as the entire matter has now become concluded between the parties. 10. On a perusal of the judgment dated 17.1.2019 in O.P.(C)No.28/2017 of this Court, it is self-explanatory. The dismissal of an application seeking to set aside the compromise decree in O.S.No.1298/2014 of the Munsiff's Court, Ernakulam was under challenge in O.P. R.S.A.No.922 of 2020 **==> picture [22 x 8] intentionally omitted <==** ## (C)No.28/2017. 11. There were two suits between the parties as O.S.No.250/2016 and O.S.No.1298/2014 before the trial court. In O.S.No.250/2016, the 1[st] defendant filed the suit against the plaintiff and her husband seeking to set aside sale deed dated 02.01.2014 executed by the 1[st] plaintiff to the defendant. O.S.No.1298/2014 was filed by the plaintiff against the defendants for a mandatory injunction to give possession of the property covered under the sale deed dated 02.01.2014. The suits were later settled in mediation. As per the terms of the settlement, on payment of an amount of Rs.45,00,000/- on or before 11.2.2016 by the defendants to the plaintiff, the plaintiff will re-convey the property to the 1[st] defendant. If the amount of Rs.45,00,000/- is not paid within the time stipulated, then the sale deed dated 02.01.2014 in favour of the respondent shall stand. In compliance with the above R.S.A.No.922 of 2020 ..9.. terms, O.P.No.250/2016 originally filed as Indigent O.P. was to be dismissed as withdrawn. This settlement and compromise decree pursuant thereto are challenged by the defendants alleging fraud in O.P.(C)No.28/2017. Later, this decree was challenged before the first appellate court along with a delay condonation application. Having taken into consideration of the entire circumstances, this Court passed judgment in O.P.(C)No.28/2017 on 17.1.2019 as indicated hereinbelow:- _“4. Heard both sides._ _5. The submissions of the learned counsel for the petitioner essentially relates to the antecedents and prior history of the respondent and her husband. There was an earlier suit as O.S.295/12 filed by the second petitioner against one Biju Paramu seeking to set aside a document bearing No.666/06 standing in the name of Biju Paramu in respect of the plaint schedule property. The husband of the respondent was the lawyer who was appearing_ R.S.A.No.922 of 2020 ..10.. _for the second petitioner in the said suit. The suit was decreed ex parte. Thereafter, the second petitioner executed a Settlement Deed in favour of his wife, the first petitioner. Some time later, an agreement for sale was executed by the first petitioner with one Sasidharan agreeing to convey the property to him for a total price of Rs.45 lakhs, out of which an amount of Rs.10 lakhs is stated to have been paid as advance. The period of agreement was stipulated as six months from the date of signing of agreement. The agreement did not go through. Thereafter, on 02.01.14, the first petitioner executed Sale Deed in respect of the property in favour of the respondent who is the wife of the Advocate of the second petitioner, for an amount of Rs.6.15 lakhs. It is thereafter that the suits in which the present compromise decree have been passed, were instituted._ _6. The submission of the learned counsel for the petitioners is to the effect that all the previous transactions show the involvement of the husband of the respondent who was the Advocate for the parties with open eyes._ R.S.A.No.922 of 2020 ..11.. _Therefore the earlier transactions dwindles into insignificance. The question that arises for consideration now is as to whether the compromise is vitiated by fraud or undue influence._ _8. As regards fraud and undue influence, the law is too well settled that relevant facts and particulars are to be specifically pleaded. In the case at hand, the relevant plea of the petitioners in the affidavit filed in support of the application seeking to set aside the compromise reads thus:-_ _“.... Being an influential person like a lawyer, the power of attorney holder of plaintiff threatened us and also misused his relation with my counsel and mediator forcefully made us to sign the mediation agreement. The power of attorney holder of plaintiff made coercion, fraud and undue influence to sign us the mediation agreement and we signed the mediation agreement without our free and wilfull consent....”_ _9. The same does not give any particulars regarding the alleged fraud and undue influence._ R.S.A.No.922 of 2020 ..12.. _What is the nature of the fraud and undue influence is not pleaded. How the position, as the Advocate for the second petitioner, was misused, is not stated. In the absence of any definite plea of fraud and undue influence, as to the manner in which the same was employed, the reason why the petitioners had to agree for the terms of the compromise as is presently put forwarded, the submissions of the learned counsel for the petitioners is of no avail. The court has further found that there is no material on record to prove that the compromise entered into is vitiated by fraud and undue influence. There is no proper plea also._ _I do not find any infirmity with the order impugned. The original petition fails and is accordingly dismissed.”_ 12. Going by the facts and circumstances of this case, this Court is of the view that the petition to condone the delay of 1599 days in preferring the first appeal before the first appellate court was dismissed on tenable grounds. Even assuming that the delay can be condoned taking a R.S.A.No.922 of 2020 **==> picture [28 x 8] intentionally omitted <==** liberal view in the matter, still the first appeal of this nature is not maintainable at the instance of the defendants who preferred O.P.(C)No.28/2017 before this Court and obtained an order against them on identical matter. Even if the delay is condoned and the appeal is admitted before the first appellate court, this court is of the view that the appeal itself does not contain any ground having merits for entering a different finding passed by this Court in O.P. (C)No.28/2017. The judgment in O.P.(C)No.28/2017 between the same parties has become final. It is not practically possible for the defendants to set up a contention which has been negatived by this Court in O.P. (C)No.28/2017. The first appellate court has taken into consideration the entire facts including sufficient cause to condone the delay and rightly dismissed the application seeking to condone the delay. Accordingly the first appeal was also rightly dismissed. R.S.A.No.922 of 2020 **==> picture [28 x 8] intentionally omitted <==** 13. There is no substantial question of law involved in this case. To be a substantial question of law, there must be a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of facts arrived at by the first appellate court. The findings recorded by the first appellate court are legally tenable and no interference is warranted. In the result, this R.S.A. is dismissed at the admission stage itself. There would be no order as to costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** skj