Muhammed Sidhique and others v. Muhammed Kunju and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 8TH DAY OF MARCH 2013/17TH PHALGUNA 1934** **WP(C).No. 23300 of 2006 (W)** **----------------------------** **PETITIONER(S):-------------** **1. MUHAMMED SIDHIQUE, M.M. MANZIL, PADA NORTH, KARUNAGAPPALLY. 2. MUHAMMED NIZAR, DO. DO.** **3. MYTHEEN KUNJU, DO. DO. ADDL.4. MUHAMMED SHEREEF, DO. DO.** **“ 5. LAILA OF DO. DO. “ 6. AMINA OF DO. DO. “ 7. MUHAMMED IQBAL OF DO. DO.** **(ADDL.RESPONDENTS 4 TO 7 ARE IMPLEADED AS PER ORDER DATED 11.11.2010 IN IA.NO.12059/2010)** **BY ADVS.SRI.B.KRISHNA MANI SMT.S.SIBHA** **RESPONDENT(S):-** **-------------** **MUHAMMED KUNJU, KOCHAYYATHU VEEDU, PULIYOORVANCHI NORTH MURI, PULIYOOR VILLAGE KARUNAGAPPALLY.** **R,R1 BY ADV. SRI.V.N.GOPALAKRISHNAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 23300 of 2006 (W)** ## **----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:-** |**EXT.P1:**|**COPY OF THE COMPROMISE DECREE DATED 6.11.2002 IN OS.NO.**| |---|---| ||**43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALY.**| |**EXT.P2:**|**COPY OF THE EXECUTION PETITION AS E.P.NO.273/2003 IN**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALY.**| |**EXT.P3:**|**COPY OF THE OBJECTION DTD.15.1.2004 IN E.P.NO.273/2003**| ||**IN OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT,**| ||**KARUNAGAPPALY.**| |**EXT.P4:**|**COPY OF THE COMPROMISE APPLICATION DTD.8.8.2003 IN EA.NO.**| ||**168/2003 IN OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT,**| ||**KARUNAGAPPALY.**| |**EXT.P5:**|**COPY OF THE OBJECTION DATED 2.4.2004 IN OS.NO.43/1996**| ||**BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALY.**| |**EXT.P6:**|**COPY OF THE APPLICATION DATED 5.7.2004 EA.NO.145/2004 IN**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALY.**| |**EXT.P7:**|**COPY OF THE MEMORANDUM OF APPEAL DATED 27.9.2004 IN**| ||**UNNUMBERED AS. /04 BEFORE THE DISTRICT COURT, KOLLAM.**| |**EXT.P8:**|**COPY OF THE COUNTER AFFIDAVIT DTD.12.1.2005 IN UNNUMBERED**| ||**AS. /04 BEFORE THE DISTRICT COURT, KOLLAM.**| |**EXT.P9:**|**COPY OF THE COUNTER AFFIDAVIT DATED 12.7.2001 IN**| ||**UNNUMBERED AS. /04 BEFORE THE DISTRICT COURT, KOLLAM.**| |**EXT.P10:**|**COPY OF THE APPLICATION IN EA.NO.1/2005 IN EP.NO.**| ||**273/2003 IN OS.NO.43/1996 BEFORE THE MUNSIFF'S**| ||**COURT, KARUNAGAPPALY.**| |**EXT.P11:**|**COPY OF THE OBJECTION DATED 19.1.2005 IN EP.NO.273/2003**| ||**IN OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALY.**| |**EXT.P12:**|**COPY OF THE AFFIDAVIT DATED 21.1.2005 IN EA.NO.1/2005 IN**| ||**EP.NO.273/2003 IN OS.NO.43/1996 BEFORE THE MUNSIFF'S**| ||**COURT, KARUNAGAPPALLY.**| |**EXT.P13:**|**COPY OF THE CORDER DTD.7.2.2005 IN EA. NO.1/2005 IN**| ||**EP.NO.273/2003 IN OS.NO.43/1996 BEFORE THE MUNSIFF'S**| ||**COURT, KARUNAGAPPALLY.**| **(contd.......)** **WP(C).No. 23300 of 2006 (W)** ## **----------------------------** ## **-: 2 :-** |**EXT.P14:**|**COPY OF THE JUDGMENT DTD.13.6.2005 IN WP(C).NO.10671/05**| |---|---| ||**BEFORE THE HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.**| |**EXT.P15:**|**COPY OF THE ORDER IN RP.NO.555/2005 IN WP(C).NO.10671/05**| ||**BEFORE THE HONOURABLE HIGH COURT OF KERALA, ERNAKULAM.**| |**EXT.P16:**|**COPY OF THE ORDER IN IA.NO.1276/2004 BEFORE THE DISTRICT**| ||**COURT, KOLLAM DATED 22.7.2005.**| |**EXT.P17:**|**COPY OF THE APPLICATION DATED 3.8.2005 IN IA.NO.1305**| ||**OF 2005 IN OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT,**| ||**KARUNGAPPALLY.**| |**EXT.P18:**|**COPY OF THE APPLICATION DATED 3.8.2005 IN IA.NO.1306/05**| ||**IN OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY.**| |**EXT.P19:**|**COPY OF THE COUNTER AFFIDAVIT DTD.28.9.2005 IN IA.NO.1305/**| ||**05 IN OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT,**| ||**KARUNAGAPPALLY.**| |**EXT.P20:**|**COPY OF THE OBJECTION DTD.28.9.05 IN IA.NO.1306/05 IN**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNGAPPALLY.**| |**EXT.P21:**|**COPY OF THE APPLICATION DTD.28.2.2003 IN IA.NO.665/03**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY.**| |**EXT.P22:**|**COPY OF THE NOTICE DTD.5.3.2003 IN IA.NO.665/03 IN**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY.**| |**EXT.P23:**|**COPY OF THE NOTICE DTD.5.3.2003 IN EP.NO.273/2003 IN**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY.**| |**EXT.P24:**|**COPY OF THE ORDER DTD.26.7.2006 IN IA.NO.1305/2005 IN**| ||**OS.NO.43/1996 BEFORE THE MUNSIFF'S COURT, KARUNAGAPPALLY.**| ## **RESPONDENTS' EXHIBITS:-** **EXT.R1(a): COPY OF THE ORDER IN IA.NO.261/1996 IN OS.NO.43/1996 BEFORE THE MUNSIFF COURT, KARUNAGAPPALLY DTD.15.3.96.** - **EXT.R1(b): COPY OF THE ORDER IN I.ANO.331/96 IN CMA.NO.24/96 DISTRICT COURT, KOLLAM DTD.11.4.1996.** **EXT.R1(c): COPY OF THE JUDGMENT IN CMA.NO.24/1996 DISTRCT COURT, KOLLAM DTD.13.9.1996.** - **EXT.R1(d): COPY OF THE PETITION IN IA.NO.3653/2000 IN OS.NO.43/1996 BEFORE THE MUNSIFF COURT, KARUNGAPPALLY DTD.9.6.1998.** **(contd.......)** **WP(C).No. 23300 of 2006 (W)** ## **----------------------------** ## **-: 3 :-** **EXT.R1(e): COPY OF THE ORDER IN IA.NO.3653/2000 IN OS.NO.43/1996 BEFORE THE MUNSIFF COURT, KARUNAGAPPALLY DTD.7.11.1996.** **EXT.R1(f): COPY OF THE LETTER DTD.17.12.2004. EXT.R1(g): COPY OF THE CAVEAT OP DATED 22.12.2004.** **EXT.R1(h): COPY OF THE IA.NO.1305/2004 IN OS.NO.43/1996 BEFORE THE HOB'BLE MUNSIFF COURT, KARUNGAPPALLY DTD.7.10.2005. EXT.R1(i): COPY OF THE DEPOSITION DTD.5.4.2006. EXT.R1(j): COPY OF THE GO(MS)NO.148/1996/LAD DTD.30.7.1996.** ## **( true copy )** **PA to Judge.** _**Kvs/-**_ ## **THOMAS P. JOSEPH, J.** = = = = = = = = = = = = = = = = Writ Petition (C) No.23300 of 2006. = = = = = = = = = = = = = = = = Dated this the 8[th] day of March, 2013. ## **J U D G M E N T** Ext.P24 common order dated 26.7.2006 on IA.No.1305 of 2005 in OS.No.43 of 1996 of Munsiff's Court, Karunagappally is under challenge. By the said common order, learned Munsiff found that the compromise (allegedly) entered between petitioners and the respondent which resulted in Ext.P1, decree dated 6.11.2002 is the result of fraud involving the then counsel for respondent/defendant in the sense that the compromise was prepared on blank paper signed by the respondent. Petitioners/plaintiffs challenge that common order. 2. Petitioners and respondent are owners of adjoining buildings. Petitioners filed OS.No.43 of 1996 for a declaration that construction made by the respondent is illegal and unauthorised and for consequential reliefs. While so, Ext.P1, compromise decree was passed on **WP.(C) No.23300/2006.** 2 6.11.2002. By the said decree, respondent (allegedly) agreed to demolish the unauthorised construction made by him within the time stipulated therein. As the compromise decree was not complied, petitioners filed EP.No.273 of 2003 on 8.8.2003. Respondent preferred Ext.P3, objection claiming that he has complied with the compromise decree. Petitioners filed Ext.P4, application to appoint an Advocate Commissioner to report whether the compromise decree is complied with. Respondent filed Ext.P5, objection and Ext.P6, application to appoint an Advocate Commissioner to report whether clause Nos.3 and 4 of Ext.P1, decree are complied. Executing Court allowed Exts.P4 and P6 applications. The Advocate Commissioner inspected the property on 6.12.2004. 3. According to the respondent, it is only when expert commissioner told him about gravity of the decree based on compromise he (allegedly) entered into, that he learnt that he was cheated by his counsel. He came to **WP.(C) No.23300/2006.** 3 know about the same only on 24.12.2004 and thereon got relinquishment of vakalath and the case bundle. He preferred Ext.P7, appeal against the compromise decree in the District Court, Kollam on 27.9.2004 with Ext.P8, application to condone the delay of 751 days. Petitioners preferred Ext.P9, objection to Ext.P8, application. In the meantime, respondent filed Ext.P10, application in the Execution Court under Order 21 Rule 26 of the Code of Civil Procedure to stay execution proceeding until the appeal is decided. Petitioners preferred Ext.P11, objection. Executing Court allowed that application by Ext.P13, order which petitioners challenged in this Court in WP(C). No.10671 of 2005. That writ petition was disposed of by Ext.P14, judgment dated 13.6.2005. This Court directed the District Court, Kollam to dispose of Ext.P7, appeal. 4. Respondent filed RP.No.555 of 2005 for review of Ext.P14, judgment. That application was dismissed by Ext.P15, order dated 21.7.2005. It is contended by the **WP.(C) No.23300/2006.** 4 learned counsel for petitioners that respondent withdrew the application and the appellate court passed Ext.P16, order to that effect. Respondent filed IA.Nos.1305 and 1306 of 2005 (Exts.P17 and P18) to set aside the compromise decree and for other reliefs. Respondent claimed that he was not a party to the compromise and that he was not consulted by his counsel in that regard. He had entrusted signed, blank papers with his counsel which were made use of, for preparing the compromise petition based on which Ext.P1, compromise decree was passed. 5. On IA.Nos.1305 and 1306 of 2005, respondent gave evidence as PW1 while one of petitioners was examined as DW1. Based on their evidence trial court came to the conclusion that there was no valid compromise in the sense that the compromise which resulted in Ext.P1, decree was not the result of volition of respondent. It was made without his consent and knowledge on signed blank papers. Consequently, Ext.P24, order was passed. **WP.(C) No.23300/2006.** 5 6. Learned counsel for petitioners contended that though respondent had summoned his former counsel to be examined as a witness and that witness was present in court, he was not examined (learned counsel for respondent submits that respondent had not summoned the counsel). It is further contended that it is not based on any acceptable evidence that learned Munsiff found that the compromise was not with the consent of respondent and that it was prepared on blank, signed papers. According to the learned counsel, when fraud is attributed, evidence as in a criminal prosecution is required particularly in this case as it involves (alleged) professional misconduct of the counsel who was appearing for the respondent. Learned counsel has invited my attention to Ext.P3, objection and Ext.P6, application respondent had preferred in the executing court where no such contention regarding validity of compromise was raised. 7. Learned counsel for the respondent has **WP.(C) No.23300/2006.** 6 contended that there is sufficient evidence to conclude that the compromise was not with the consent or knowledge of the respondent. It is argued that though the allegation made in the plaint was that respondent constructed building in violation of the Building Rules, the Building Rules was made applicable to the local authority concerned only with effect from 30.7.1996 and hence even prima facie, case of petitioners that construction made by the respondent was in violation of the Building Rules could not stand. It is argued that the application for injunction moved by the petitioners in O.S.43 of 1996 was dismissed on the ground that petitioners have come to the court with unclean hands. The appeal filed against that order was dismissed as withdrawn. Later, petitioners made an attempt to withdraw the suit itself as it had become infructuous. But, the application for withdrawal was later withdrawn. It is quite unlikely that in such a situation, respondent would enter into a compromise of the nature which affected him adversely. Learned **WP.(C) No.23300/2006.** 7 counsel submitted that going by the compromise decree it would appear that even reliefs petitioners had not asked in the plaint are included in that decree. Learned counsel has invited my attention to the evidence of DW1 to contend that even petitioners were not consulted in the matter of drafting of the compromise petition. These circumstances are sufficient to hold that the compromise so called, was not with the consent or knowledge of the respondent. In that view of the matter, it is necessary to interfere with Ext.P24 order, it is argued. 8. Necessarily, counsel engaged by the respondent and against whom fraud is attributed should have a say as to the circumstances which led to the (alleged) compromise leading to Ext.P1, decree. Learned counsel for respondent has invited my attention to the evidence of DW1 to contend that even petitioners were not aware of the compromise and that terms and conditions of the compromise were discussed between the counsel for petitioners and the **WP.(C) No.23300/2006.** 8 respondent. 9. I am not going to the question whether the evidence let in by the respondent is sufficient to prove fraud alleged by the respondent. The Privy Council in **A.L.N.Narayanan Chettyar v. Official Assignee, High Court, Rangoon (AIR 1941 PC 93)** has held: “....... Fraud of this nature, like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt.” The Supreme Court has approved that view in **Svenska Handelsbanken v. Indian Charge Chrome and others (AIR 1994 SC 626, para.44)** . Whatever be the nature of evidence parties have let in, one thing looms large – counsel for respondent who is alleged to have misused signed blank papers (allegedly) left by the respondent was not examined and he was not given an opportunity to offer his explanation. The finding entered would amount to professional misconduct of the counsel concerned. The present finding is made against him, without hearing him 9 ## **WP.(C) No.23300/2006.** and behind his back. 10. Having regard to the above, I am inclined to interfere with Ext.P24 order, but without expressing any opinion on the acceptability of the version of respondent regarding the compromise petition and the consequent compromise decree or sufficiency of evidence already on record. Respondent has to examine his former counsel. If the evidence the counsel gives is not favourable to the respondent, he can, with permission of the court, invoke Section 154 of the Evidence Act. In case, in spite of giving opportunity to examine the counsel respondent does not do so, it is left to the trial court to decide whether any adverse inference has to be drawn against the respondent. Having regard to the facts and circumstances of the case I am inclined to allow this writ petition and set aside Ext.P24, common order. ## Resultantly, this writ petition is allowed as under:- - (1) Ext.P24, common order dated 26.7.2006 on IA.Nos.1305 and 1306 of 2005 in OS.No.43 **WP.(C) No.23300/2006.** 10 of 1996 of Munsiff's Court, Karunagappally is set aside. - (2) IA.Nos.1305 and 1306 of 2005 are remanded to the learned Munsiff, Karunagappally for fresh decision after giving the respondent opportunity to examine his former counsel. - (3) I make it clear that if so advised, parties will be entitled to further adduce evidence on the point. **THOMAS P. JOSEPH, JUDGE.** ## **Kvs/-**