Sajeena v. Abdul Rehim & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** **Mat.Appeal.No. 1078 of 2018** **AGAINST THE ORDER DATED 3.8.2018 IN I.A. NO.3078/2017 AND I.A. NO.3079/2017 IN OP 683/2014 of FAMILY COURT, MAVELIKKARA** ## **APPELLANT/S:** **SAJEENA AGED 27 YEARS W/O HUSSAIN, AB SAW MILLS, KANNIMELCHERY, KAVANAD, KOLLAM.** |||**BY ADV. SRI.M.R.SASITH**| |---|---|---| |**ENT/S**|**:**|| |**1**||**HUSSAIN**| |||**AGED 37 YEARS**| |||**S/O ABDUL RAHIM,KUMBAZHA, THEKKATHIL, ELIPPAKKULAM**| |||**MURI, KATTANAM MURI, KATTANAM VILLAGE,**| |||**ELIPAKKULAM.P.O, PIN- 691 551.**| |**2**||**ABDUL RAHIM, - *(DIED)**| |||**KUMBAZHA, THEKKATHIL, ELIPPAKKULAM MURI, KATTANAM**| |||**MURI, KATTANAM VILLAGE, ELIPAKKULAM.P.O, PIN- 691**| |||**551.**| |**3**||**RUKHIYA KUNJU,**| |||**KUMBAZHA, THEKKATHIL, ELIPPAKKULAM MURI, KATTANAM**| |||**MURI, KATTANAM VILLAGE, ELIPAKKULAM.P.O, PIN- 691**| |||**551.**| |**4**||**ABDUL LATHIF,**| |||**S/O. ABDUL RAHIM,**| |||**KUMBAZHA, THEKKATHIL, ELIPPAKKULAM MURI, KATTANAM**| |||**MURI, KATTANAM VILLAGE, ELIPAKKULAM.P.O, PIN- 691**| |||**551.**| ## **RESPONDENT/S:** **( RESPONDENTS 1,3,& 4 ARE RECORDED AS THE LEGAL HEIRS** Mat.Appeal No.1078/2018 2 **OF DECEASED RESPONDENT NO.2 (ABDUL RAHIM) AS SPER ORDER DATED 14.12.2018.)** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON,17.1.2019 THE COURT ON 20.02.2019 DELIVERED THE FOLLOWING:** Mat.Appeal No.1078/2018 3 ## **ABDUL REHIM & T.V.ANILKUMAR, JJ. --------------------------------Mat.Appeal No.1078 of 2018 ---------------------------------Dated this the 20[th] day of February, 2019** ## **J U D G M E N T** ## T.V.ANILKUMAR,J. A compromise decree passed on 20.1.2017 by the Family Court, Mavelikkara in O.P.No.683/2014 was sought to be reviewed by the appellant/wife before the court below. I.A.No.3078/2017 filed for reviewing the decree, under Order XLVII Rule 1 of the C.P.C., was delayed by 256 days. Therefore I.A.No.3079/2017 was also filed seeking condonation of delay. Both the petitions were opposed by the 1[st] respondent/husband and others. The Family Court, on accepting their objections, dismissed both petitions through the impugned order, dated 3.8.2018. That common order is under challenge in this appeal before us. 2. Appellant is the wife of 1[st] respondent. Other respondents are his parents and brother. The O.P. 683/2014 was filed by the appellant seeking to recover gold ornaments, patrimony etc. During pendency of the O.P. she left for Oman. Since she was not in a Mat.Appeal No.1078/2018 4 position to prosecute the litigation, she executed a power of attorney on 20.12.2016, empowering her mother to prosecute and conduct the case on her behalf. While she was abroad, a compromise was entered on her behalf between the power of attorney holder and the 1[st] respondent. The Family Court after recording the same, passed a decree in terms of the compromise. The terms of the compromise were also appended to the decree. These fundamental facts are not in dispute between parties. 3. Contention of the appellant/wife in the review petition was that, the terms incorporated in the compromise were adverse to her interest. Her mother 'Haiyath' is an uneducated woman and the respondents taking unfair advantage of her illiteracy played fraud and misrepresentation on her. The terms in the compromise were fashioned in such a manner as to make it appear that she settled and relinquished all the claims in the pending litigations before the Family court. The liability for payments allegedly undertaken by the first respondent in the compromise petition were not discharged as agreed. Further, the power of attorney holder did not consult her before finalising the terms of compromise or before affixing her signature to the petition. A major contention raised challenging the Mat.Appeal No.1078/2018 5 legality of the compromise was that, the 'talaq' pronounced by the 1[st] respondent on an earlier date was accepted by the power of attorney holder, without any authority. Essence of the contention is that, without the 'talaq' being communicated to the appellant in person and without the appellant personally transacting with the same, in any manner, a power of attorney holder has no authority to act on her behalf in a purely personal matter. 4. The respondents opposed both the review and delay petitions. The court below considered all the contentions of the appellant, but was not pleased to accept any of them as forming sufficient ground for review. It is found, from the pleadings of the appellant that, the execution of power of attorney is not in dispute. Further it is found that the instrument contained sufficient authority entrusted with the attorney to enter into any compromise and settle the cases between parties, on behalf of the appellant who was abroad. The lower court ruled out the chance of the power of attorney being subjected to fraud or misrepresentation as she had the service and guidance of a lawyer, who is also a subscriber to the compromise petition. It also held that, the attorney had sufficient opportunity to understand the merit of the appellant's claim in the proceeding, since Mat.Appeal No.1078/2018 6 the case was compromised at a stage when the entire evidence had been recorded by the court. The contention of the appellant based on fraud and misrepresentation was, therefore, rejected as being devoid of any merit. 5. We heard counsel on both sides. 6. This court takes note that the allegations of fraud and misrepresentation were not substantiated by the appellant. The circumstances if any, supporting the allegations of fraud or misrepresentation, were not brought out on record by any evidence. Even assuming that the power of attorney holder was illiterate, she had the opportunity of comprehending the contents through her lawyer, who is also one of the signatories to the compromise petition. The very allegation of the appellant appears to be that, the compromise was formulated in such a manner as to make out that, none of her claims survived after the compromise, as if she had been paid for that. 7. We have difficulty in accepting this plea because, the terms of the compromise would indicate that, she had settled her claim for maintenance and the value of gold etc. for a total amount of `4,50,000/- and had also agreed to put an end to the litigations. The Mat.Appeal No.1078/2018 7 1[st] respondent too agreed to withdraw the cases instituted by him before the court below. The interest of the minor ward was also taken care of and provisions in regard to custody of the child were also made in the petition. The payments were agreed to be effected in two installments. Nothing was brought on record to prove that the 1[st] respondent did not discharge his monetary liabilities till date. So long as the appellant does not deny the signature of the power of attorney holder in the compromise petition and her appointment as attorney to prosecute the case, which included the power to settle the cases, the general presumption of the fact having regard to the ordinary human conduct and natural course of events is that, the execution of the compromise proceeded in regular circumstances and in accordance with law. The appellant failed to rebut this presumption emerging in the case. 8. The burden to prove that the compromise arrived at under Order XXIII Rule 3 of the Code of Civil Procedure was tainted by fraud lies only upon the party who alleges the same. His mere assertion in the pleadings before the court is no substitute for proof of vitiating circumstances. No evidence was adduced by appellant to show that her attorney did not consult her on the proposed terms of compromise Mat.Appeal No.1078/2018 8 or that the former had any motive to act adversely to the appellant's interest. She has no case that she was deprived of opportunity to adduce evidence in support of any of her contentions in the court below. Therefore, her plea based on fraud and misrepresentation fails. We fully agree with the view taken by the court below rejecting the contentions of the appellant. 9. The first and the foremost clause incorporated in the compromise petition discloses that the power of attorney holder accepted the 'talaq' pronounced by 1[st] respondent on 5.1.2014 on behalf of the appellant. In the absence of any contrary evidence, the presumption to be drawn is that the acceptance of talaq recorded in the compromise petition was only under the instruction of appellant. Learned counsel for the appellant argued that, none other than the spouse could legally acknowledge the 'talaq' since the talaq relates to a pure personal matter, which cannot be delegated to an agent. Such a 'talaq', according to the learned counsel, is invalid which would render the compromise in the present case void _ab initio._ We find our way difficult to accept this argument. There is nothing on record to disclose that the appellant was ignorant of the 'talaq' pronounced by the 1[st] respondent. There is also no case that it was never Mat.Appeal No.1078/2018 9 communicated to her. The 'talaq', as visible from the first clause incorporated in the compromise petition, was already pronounced on 5.1.2014, far before her journey abroad. She left for Oman only in the year 2016. The circumstance thus proves that appellant had sufficient personal notice of the 'talaq' and it was duly communicated to her. If that be so, in our view, there is nothing in law which prevents the power of attorney holder from affirming in the compromise petition on behalf of the appellant the acceptance of 'talaq' already pronounced by the 1[st] respondent. The argument of assailing validity of compromise on the ground of alleged lack of acceptance of 'talaq' fails. 10. The lower court refused to condone the delay of 256 days on the ground that the inordinate delay was not explained by any sufficient reason. In our view, strictly speaking, there was no incidence of delay since the residuary Article 137 of the Limitation Act 1963 alone applied to the facts before us, though it was not specifically invoked by the appellant before the court below. He was entitled to avail three years from the date on which right to apply for setting aside the compromise decree accrued. The appellant missed the true remedy under Order XXIII Rule 3 proviso of the Code of Civil Mat.Appeal No.1078/2018 10 Procedure and misapplied Order XLVII Rule 1 of the Code for setting aside the compromise decree. Appellant's misconception of true remedy available to him under law made him concede for the delay which never occurred. 11. A learned Judge of this Court, after surveying all relevant case laws and legal provisions in the matter, held in _**Seetha Ramachandran @ Seetha Varma and Others v. K.B.Radhakrishnan, [2012 (4) KHC 653]**_ that a person aggrieved by a decree of compromise as being vitiated by fraud, misrepresentation etc., could question it only before the same court which passed it and only by invoking proviso to Order XXIII Rule 3 of C.P.C. The relevant portion of the judgment is extracted below; _“19. This is not what is contemplated by the proviso to R.3 O.23. The proviso to R.3 O.23 can be invoked on the mere denial that the adjustment as recorded by the Court has actually happened or on denial of the satisfaction of the plaint claim. The explanation also makes it mandatory that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 shall not be deemed to be lawful within the meaning of this rule. Even a voidable contract, without initiating any proceedings to that end, could result in the compromise decree being set-aside for the mere asking, on the satisfaction of the court that it is a voidable agreement under the Indian Contract Act, 1872. Article 137 of the Limitation Act specifically takes into account those situations were no limitation is provided for. Limitation is not regulated by the Code of Civil Procedure, but by the Limitation Act. It cannot be said that the power of the Court under proviso to R.3 of O.23 is one drawn from O.47 or even deemed to be a proceeding for review._ Mat.Appeal No.1078/2018 11 _20. To clothe proviso to R.3 O.23 with the garb of review would be a turnabout from the classical allegory of the jackal falling into the blue dye. O.47 is fettered with the caution of self-restrain which is an essential attribute of all judicial action. Proviso to R.3 O.23, as is Sec.151, is an exhortation to the innate judicial conscience of every Court to fulfill the ultimate goal of justice. In view of the findings above, especially, drawing strength from the Supreme Court decision in Banwari Lal's case (supra); more specifically the power under O.23 R.3 being compared and likened to that under S.151, the proviso under R.3 of O.23 cannot be one conferring powers merely of review and hence would be regulated by Article 137 of the Limitation Act. The application before the Court below hence cannot be said to be one barred by limitation._ _21. Incidentally, a question arose as to the invocation of the remedies available under the proviso to Rule 3 of Order 23 and Rule 1A of Order 43. Whether after passing of a decree, proviso to Rule 3 Order 23 could be invoked. Banwari Lal's case(supra), was a case in which a compromise deed was recorded and the suit dismissed as per the compromise deed. It was also directed that "decree sheet be prepared accordingly"(paragraph 3 of the decision). After having considered the issue elaborately, the effect of the Amendment Act of 1976, introducing a proviso along with explanation to Rule 3 of Order 23 and Rule 1A of Order 43 was summarised in Paragraph 13. It was also held "As such a party challenging the compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which, he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code."_ _After holding so, as noticed earlier, the Hon'ble Supreme Court labelled the power under proviso to Rule 3 Order 23 as one under Section 151 of the Code and found that since specifically such power has been vested by the proviso, it is not the inherent power which is to be invoked but the proviso conferring such power. On the facts of the above case the Act of the Subordinate Judge in entertaining the application filed under the proviso to Rule 3 Order 23 was held to be perfectly justified. This, in effect, dispels the doubt in the mind of this Court, since the proviso was invoked after the decree was passed.”_ ## 12. The jurisdiction of the court under Order XXIII Rule 3 Mat.Appeal No.1078/2018 12 proviso is wider in scope and application than under review which is confined only to limited situations. The proviso to Order XXIII Rule 3 contemplates inquiry and determination of disputes after appreciation of facts and evidence which is barred in a proceeding arising under Order XLVII Rule 1. 13. We have considered all the contentions of the appellant and are satisfied that he failed to substantiate that compromise decree is vitiated by any illegality. We find no reason to interfere with the findings rendered by the court below. In the result, we dismiss Mat.Appeal No.1078/2018 and confirm the common order dated 3.8.2018 passed by the Family Court, Mavelikkara. No costs. ## **Sd/-** ## **C.K.ABDUL REHIM JUDGE** Sd/- **T.V.ANILKUMAR, JUDGE** al/-