Jameela Beevi v. Hameed Kunju

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932** **WP(C).No. 30031 of 2009(O)** **----------------------------------** **OS.470/2000 of MUNSIFF COURT, KARUNAGAPPALLY** **....................** **PETITIONER(S):** **-------------------** **JAMEELA BEEVI, UPPANVILA THEKKATHIL, VADAKKUMTHALA KIZHAKKUM MURI, PANMANA VILLAGE, KARUNAGAPALLY, KOLLAM DISTRICT.** **BY ADV. SRI.M.P.ASHOK KUMAR** **RESPONDENT(S):** **--------------------** **HAMEED KUNJU, VILAKKATTU KIZHAKKATHIL VADAKKUMTHALA KIZHAKKUM MURI, PANAMANA VILLAGE, KARUNAGAPALLY, KOLLAM DISTRICT.** **ADV. SRI.B.KRISHNA MANI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **svs/** ## **HARUN-UL-RASHID, J. -----------------------W.P.(C).No.30031 Of 2009 ---------------------Dated this the 15[th] day of December, 2010.** ## **J U D G M E N T** **P** etitioner is the plaintiff in O.S.No.470 of 2000 on the file of the Munsiff Court, Karunagappally. Respondent is the defendant in the suit. Suit was filed for permanent perpetual injunction restraining the defendant from obstructing ingress and egress to the plaint schedule property by constructing compound wall, fencing, building etc. on the north-eastern corner of A & B schedule properties and on the western boundary of plaint C schedule. The relief of mandatory injunction was also sought to remove the fencing put up on the southern side of plaint C schedule property. Ext.P1 is the copy of the plaint. Plaint AB schedule property is having an extent of 9.5 cents. Plaintiff purchased the plaint schedule property from the defendant by sale deed dated 4.4.1986. Subsequently, the plaintiff constructed a residential building in the property. The defendant's property is lying on the northern side of plaintiff's property. Further north is a Panchayath road. The plaintiff is using 4 feet pathway provided in the sale deed which starts from ## **W.P.(C).No.30031 Of 2009** **==> picture [20 x 9] intentionally omitted <==** the Panchayath road on the north of defendant's property. The pathway begins from the north western corner of defendant's property, passes through the western boundary of the defendant's property, reaches south-west corner then deviate to eastern side and reaches the plaintiff's property. The commissioner deputed in the suit submitted a report and sketch which shows the alignment of the pathway that leads to the plaintiff's property. Ext.P2 is the report and sketch of the commissioner. 2. In the plaint it is alleged that the defendant obstructed the said pathway by putting up a fence at the entrance. As I said earlier, the entrance portion is on the north-western corner of defendant's property that touches the Panchayath road. Suit was filed for prohibitory as well as mandatory injunction. At the instance of the plaintiff the advocate commissioner appointed inspected the site and submitted a report and sketch. Ext.P2 is the report and sketch. The defendant entered appearance in the suit. Before filing the written statement the parties to the suit filed a compromise petition and the court passed a compromise decree in terms of the compromise petition. Ext.P3 is the ## **W.P.(C).No.30031 Of 2009** **==> picture [20 x 9] intentionally omitted <==** compromise decree. Compromise petition filed is attached to Ext.P3 decree. 3. Petitioner filed I.A.No.189 of 2008 seeking to recall the compromise decree passed in the case. Serious allegations are raised in the affidavit filed in support of the I.A. 4. The petitioner is an illiterate lady. She filed the suit alleging that the way to her house is blocked by the defendant. Nobody can dispute the fact that the plaintiff has a right of way through the defendant's property. It is very explicitly stated in the sale deed executed by the defendant in favour of the plaintiff. Suit was filed to remove the obstruction caused in using the pathway and also for a prohibitory injunction not to cause further obstruction to the pathway. 5. The facts alleged in I.A.No.189 of 2008 are as follows: The plaintiff entrusted the case to Adv.Mr.G.Thulaseedharan. Even before the filing of the written statement by the defendant, plaintiff's counsel obtained her signature in the compromise petition and filed it before the court. She was told that the compromise will be helpful to her in resolving the dispute. The compromise petition containing the ## **W.P.(C).No.30031 Of 2009** **==> picture [20 x 9] intentionally omitted <==** terms of the compromise was not read over to her and the counsel did not make her understand the contents of the compromise petition. The court passed a decree in terms of the compromise. It is averred that after obtaining the copy of the decree she had occasion to understand the contents of the compromise decree. When the compromise petition was read over to her she came to know that the terms recorded are most prejudicial to her interest. On a perusal of the decree she came to know there was no provision for removal of the fence put up by the defendant blocking the pathway. Further there is no provision for removal of six trees in the way which is causing obstructions for free ingress and egress. Another provision in the compromise is that she will get a free ingress and egress only when the defendant cut and remove the trees standing in the pathway. Moreover, from the compromise it can be seen that the alignment of the pathway was also changed. The alignment of the pathway was shifted from the extreme western side of the defendant's property towards little east. In the compromise petition the user of the pathway is restricted to the petitioner and her predecessor. ## **W.P.(C).No.30031 Of 2009** **==> picture [20 x 9] intentionally omitted <==** 6. I have perused the compromise petition which contains the terms of compromise. The said compromise petition contains the aforesaid terms and conditions. There is change of alignment, there is no provision for removal of the obstructions, there is no provision for removing the standing trees till it is cut and removed at the behest of the defendant, certain clause for the restrictive user of the pathway etc. The petitioner submitted that she is an illiterate lady and her husband is an employee in a small tea shop. She submitted that she is hailing from a poor family. Finding that there is serious grievance to her this Court summoned both sides. Petitioner and son of the respondent appeared on several occasions. This Court tried to resolve the dispute between the parties. This Court had occasions to interact with the petitioner and the son of the respondent on many occasions. The settlement talk did not fructify and therefore the matter was heard today. 7. Learned counsel for the petitioner submitted that the learned Munsiff did not apply his mind to the compromise petition and therefore a decree was happened to be passed which causes serious prejudice to the petitioner. Learned counsel referred to ## **W.P.(C).No.30031 Of 2009** **==> picture [20 x 9] intentionally omitted <==** Order XXIII Rule 3A, proviso and explanation to the said rule. Learned counsel submitted that before passing the decree in terms of compromise the learned Munsiff should have applied his mind and satisfied that the suit has been adjusted wholly or in part by any lawful agreement or compromise. According to the counsel a bare of reading of the compromise petition would show that the terms are recorded one sided which evidently benefit the defendant in the suit. Learned counsel also brought to the notice of this Court the decision reported in _**Banwari Lal v. Smt.Chando Devi and another**_ (AIR 1993 SC 1139). The Apex Court in the above said decision held as follows: _11. The present case depicts as to how on 27.2.1991 the Court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of O.23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered into between the parties. The statute requires the Court to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial_ ## **W.P.(C).No.30031 Of 2009** ::7:: _mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order._ _12. x x x x_ _13. When the amending Act introduced a proviso along with an explanation to Rule 3 of O.23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, “the Court shall decide the question”, the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validly of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise “which is void or voidable under the Indian Contract Act....” shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void_ ## **W.P.(C).No.30031 Of 2009** ::8:: _or voidable under the Indian Contract Act. Even R.1 (m) of O.43has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to R.3 of O.23, or an appeal under S.96(1) of the Code, in which he can now question the validity of the compromise in view of R.1A of O.43 of the Code.”_ 8. On a reading of compromise petition and the compromise decree and the affidavit filed in support of I.A.No.189 of 2008, this Court is of the view that the trial court did not apply its mind before passing an order under Order XXIII Rule 3. 9. The learned counsel for the respondent Adv.Mr.B.Krishnamani opposed the prayer. The learned counsel submitted that there is no supporting proof with respect to the allegations made in the affidavit filed in support of the I.A. Therefore the court below has rightly passed Ext.P5 order. 10. The petitioner explained in detail the facts leading to the filing of the petition to recall the compromise petition. Ext.P4 is the affidavit and the I.A. The petitioner sweared in Ext.P4 that ## **W.P.(C).No.30031 Of 2009** **==> picture [20 x 9] intentionally omitted <==** the compromise petition was filed which causes prejudice to her. She approached another lawyer by name Adv.Mr.P.J.Johnson. He advised her to file a fresh suit. Therefore, she filed O.S.No.62 of 2003. It is said that the said suit was based on the wrong advice given by her counsel Adv.Mr.P.J.Johnson. Shortly after filing of the suit, the said counsel died and his junior Adv.Mr.mohammed Ameer continued to conduct the case. Subsequently, finding that he is also not properly conducting the case the petitioner approached Adv.Mr.P.Venugopal during December, 2007. He advised her that the proper remedy is to file a petition to recall the compromise and not to file a fresh suit. Based on his advice the suit filed was withdrawn as not pressed and the present I.A.189 of 2008 was filed to recall the compromise decree. On a reading of Ext.P4 affidavit and petition, the sale deed of 1986 which provided the 4 feet pathway and the facts and circumstances of the case would go to show that petitioner's grievance is genuine. No prudent man or lady would agree to the terms of the compromise of the like nature recorded in the case. This Court also had occasions to meet and interact with the parties on several occasions. I am convinced that the petitioner **W.P.(C).No.30031 Of 2009** **==> picture [26 x 9] intentionally omitted <==** is a poor illiterate lady, who is not capable of understanding the legal intricacies of the terms of compromise decree passed in this case. On an analysis of the facts and circumstances of this case, I am of the view that the compromise might have been recorded in the circumstances alleged in the affidavit filed in support of the petition to recall the compromise decree. Accordingly the writ petition is allowed. Ext.P5 order under challenge is therefore set aside. I.A.No.189 of 2008 is allowed. The court shall decide the case on merit after affording an opportunity to both sides. The compromise decree is recalled. Parties shall be given an opportunity to adduce evidence in support of their case. The parties shall appear before the court below on 6.1.2011. The suit shall be disposed of within a period of nine months from the date of appearance of the parties. **HARUN-UL-RASHID, Judge.** bkn/-