Shanti Budhiya Vesta Patel & Ors vs Nirmala Jayprakash Tiwari & Ors

Court dismissed all the three Civil Applications preferred by the appellants herein seeking recall of an earlier order dated

13.06.2006 passed by the High Court which was based on the

consent terms duly signed by all the parties.

3. In order to properly appreciate the precise nature and

scope of the controversy arising in the present appeals, it would

be appropriate as well as expedient to set out a brief statement

of pertinent facts. The original appellant, Budhiya Vesta Patel,

was the predecessor-in-interest of the present appellants.

Budhiya Vesta Patel was appointed as a watchman by one R.K.

Tiwari, who was cultivating grass on the suit property since

1954-55, to take care of the suit property and for this a

Kachcha shed on the suit property was provided to him. In due

course of time, Budhiya Vesta Patel extended the shed to

construct a chawl known as Budhiya Patel Chawl consisting of

38 rooms, which were let-out by him.

4. After the death of the real owner of the suit property, Mr.

Anant Mahadeo Tambe, husband of Leela Anant Tambe,

respondent no. 7 herein, the suit property stood recorded in the

name of respondent no. 7. By means of a consent decree passed

in Suit No. 1230 of 1992 between respondent no. 7 and M/s.

2 Hitesh Enterprises, respondent no. 8 herein, the latter became

the owner of the suit property.

5. In the year 1999, Budhiya Vesta Patel filed a suit against

respondent no. 7 and said R.K. Tiwari, the predecessor-in-title

of Respondent nos. 1 to 6 herein, before the Bombay City Civil

Court, Bombay being Suit No. 5163 of 1999 seeking a

declaration that he is the owner of the suit property by adverse

possession. Since said R.K. Tiwari also claimed title to the suit

property, he also filed a suit.

6. Against this, a counter-claim being Counter Claim No. 11

of 2002 seeking eviction of Budhiya Vesta Patel and his tenants

from the suit property was filed by respondent no. 7 and

respondent no. 8. The aforesaid suits were contested and on the

basis of the pleadings of the parties, issues were framed and

evidence was led.

7. The trial Court by its judgment and order dated

10.02.2003 and 11.02.2003 dismissed the suit filed by Budhiya

Vesta Patel and allowed the counter claim filed by respondent

Nos. 7 and 8. The trial Court negatived Budhiya Vesta Patel's

3 claim of ownership of the suit property by adverse possession

since his initial possession of the suit property was a permissive

possession.

8. Aggrieved by the said judgment and order, several appeals

came to be filed before the High Court of Bombay. Budhiya

Vesta Patel had filed two appeals, being F.A. No. 1388 of 2003

and F.A. No. 1389 of 2003; the former against the dismissal of

the suit filed by him and the latter against the decree passed

against him in the counter claim. The third appeal being, F.A.

No. 1390 of 2003, was preferred by one Yusuf Vali Mohd.

Bilikhiya (respondent no. 9 herein), who was the Power of

Attorney holder of Budhiya Vesta Patel. Respondent Nos. 1 to 6

also filed an appeal against the judgment and order of the trial

Court which was registered as F.A. No. 1523 of 2003. However,

subsequently, the same was withdrawn.

9. During the pendency of the aforesaid appeals, Budhiya

Vesta Patel died on 05.12.2004. On 07.01.2005, each of the

present appellants executed an irrevocable Power of Attorney in

favour of respondent no. 9. On the basis of the said Powers of

4 Attorney, respondent no. 9 filed three separate applications

being Civil Application Nos. 3180 of 2005, 3181 of 2005 and

992 of 2005 in the aforesaid three appeals wherein he prayed

that the legal representatives of Budhiya Vesta Patel, i.e., the

appellants be brought on record in all the three appeals in place

of Budhiya Vesta Patel.

10. On 26.04.2006, the appellants executed a Power of

Attorney in favour of one Narender M. Patel. It is alleged by the

present appellants that respondent no. 9 colluded with

respondent no. 8 and, therefore, respondent no. 9 forced and

coerced them to enter into a compromise with respondent nos.

7 and 8, which was strongly objected to by the appellants. On

this, the appellants further allege that they were threatened

with dire consequences by the aforesaid respondents.

Consequently, the appellants got filed three complaints dated

01.05.2006, 17.05.2006 and 23.05.2006 with the police against

respondent nos. 8 and 9. However, it is alleged that despite

this, respondent no. 9 for himself and for and on behalf of the

appellants as their Power of Attorney holder entered into

consent terms with respondent nos. 7 and 8 in F.A. No. 1389 of

5 2003 and thereby submitted to the decree of eviction. The High

Court, by its order dated 13.06.2006, allowed the aforesaid

applications filed by respondent no. 9 and also disposed of the

said appeals after taking on record the consent terms entered

into between respondent nos. 7 and 8 on one hand and

respondent no. 9 on the other. Subsequent to filing of the

consent terms, the names of the tenants were deleted from the

array of the parties. No appeal was, however, filed by any

tenant.

11. The appellants filed, before the High Court, three civil

applications being Civil Applications Nos. 3628 of 2006, 3629 of

2006 and 3630 of 2009 praying for recall of aforesaid order

dated 13.06.2006 alleging that fraud had been played upon the

High Court by filing the said consent terms. By a common order

dated 12.10.2007, the High Court dismissed the aforesaid

applications. Hence the parties are, in appeal, before us.

12. Before we proceed to give an account of the submissions

made by the counsel appearing for the parties, we wish to make

note of a development that took place after filing of this SLP by

6 the appellants. After this SLP was filed, respondent no. 9 filed a

civil application before the High Court praying for setting aside

the consent decree dated 13.06.2006 on the ground that

respondent no. 8 had failed to perform his obligation under the

consent terms, i.e., payment of Rs 1 crore and 15 lakhs to him.

The High Court, by an order dated 06.07.2009, dismissed the

said application.

13. We may now direct our attention to the rival submissions

made before us by the parties.

14. Dr. Rajeev Dhawan, learned senior counsel appearing for

the appellants, submitted that the aforesaid consent terms were

filed without the knowledge and consent of the appellants and

as such the consent decree was passed without taking the

consent of the appellants who were necessary parties. It was

also submitted that the purpose behind executing a General

Power of Attorney in favour of respondent no. 9 by Budhiya

Vesta Patel and, upon his death, by the appellants was to

safeguard their property by issuing clear instructions to him. It

was the stand of the Dr. Dhawan that the fraudulent act of the

7 respondent no. 9 in arriving at a settlement with the respondent

nos. 7 and 8 and consequently filing the same in the High Court

without obtaining the consent of the appellants amounted to a

breach of the scope of the authority conferred on him by the

appellants and thus the consent decree passed by the High

Court was a nullity. Dr. Dhawan tried to further assail the

validity of the consent terms as also the consent decree on the

ground that the terms of the compromise arrived at were

iniquitous.

15. It was further submitted that since fraud had been played

by respondent no. 9 on the appellants by trying to siphon off

the properties belonging to the appellants, the Court has a

responsibility to protect the rights and interests of the

appellants and therefore the consent decree is required to be set

aside and quashed. In the course of his submissions, Dr.

Dhawan also referred to the three complaints filed by the

appellants with the police against harassment and threats given

to them by respondent nos. 8 and 9. Dr. Dhawan pointed out

before us that coercion and goon tactics, in addition to fraud,

8 had been employed by respondent nos. 8 and 9 to force the

appellants to sign the consent terms.

16. It was further submitted that the High Court erred in

dismissing the applications filed by the appellants seeking recall

of its earlier order. The High Court failed to see through the

monstrous designs of respondent no. 9 even though ample

material was placed on record and allegations of fraud were

clearly made before the High Court.

17. On the other hand, Mr. Ashok H. Desai, Mr. Dushyant

Dave and Mr. Jaydeep Gupta, learned senior counsel appearing

for the respondent Nos. 7 and 8 as also respondent No. 9

strongly refuted the aforesaid submissions while bringing to the

notice of the Court that, in fact, Budhiya Vesta Patel had

himself entered into a Development Agreement dated

12.01.1994 with respondent no. 9 whereby the former

transferred his rights, title and interest in the suit property to

the latter for a consideration of Rs. 2,00,000/- which was fully

paid by respondent no. 9 to the Budhiya Vesta Patel and

accepted by him prior to the execution of the said agreement. It

9 was further submitted that the irrevocable Powers of Attorney

which were executed in favour of respondent no. 9 by Budhiya

Vesta Patel and, upon his death, by the appellants made the

acts, which were carried out by respondent no. 9 in the best

interest of the appellants, binding on the appellants and that

there existed no valid ground for setting aside the compromise

arrived at between the parties and the consent decree passed by

the High Court.

18. It was also submitted that as the appellants had failed to

establish that under the terms of the Power of Attorney which

had executed in his favour by the appellants, respondent No. 9

was not authorized to enter into a settlement of the kind he had

entered, it could not be said that there was a conflict of interest

between the appellants and respondent No. 9 who was the

agent of the appellants.

19. In the light of the rival submissions made by the counsel

appearing for the parties, we have perused the entire record

before us. There is no dispute with regard to the fact that a

Development Agreement dated 12.01.1994 had been entered

10 into between Budhiya Vesta Patel and respondent no. 9

whereby and whereunder Budhiya Vesta Patel transferred his

rights, title and interest in the suit premises in favour of

respondent no. 1 for a consideration of Rs 2,00,000/-. The

records show that the said amount was fully paid and also that

the said agreement was registered with the office of the Sub-

Registrar. Thus, by entering into the said agreement and

accepting the said consideration in full and final satisfaction for

the transfer of the suit property in favour of the respondent no.

9, Budhiya Vesta Patel divested himself of his right, title and

interest in the suit property. Pursuant to the said agreement,

Budhiya Vesta Patel executed an irrevocable Power of Attorney

dated 17.02.1994 in favour of respondent no. 9 for a period of

15 years.

20. We may here refer to some of the relevant portions of the

aforesaid agreement, which are being reproduced hereinbelow:

"AND WHEREAS it is hereby further agreed by and between the parties hereto that the Developer shall be at full liberty to assign, transfer the benefit of the Agreement in respect of the aid property to party or parties of his choice at such terms and conditions as to be or he may deem fit and proper without any further

11 consultation or consent of the Owner in that behalf

4. The consideration payable by the developer to the Owner for his share right, title, interest has been fixed at Rs. 2,00,000/- (Rupees two lakhs only) and the said consideration has been paid by the Developer to the Owner on or before the execution of these presents (the receipt and payment whereof the Owner doth hereby admit and acknowledge and of and from the same do hereby forever discharge the Developer "

21. Further, a Deed of Confirmation dated 15.12.1995 duly

registered on the same date was executed between Budhiya

Vesta Patel and respondent no. 9 by which Budhiya Vesta Patel

confirmed that the aforesaid Development Agreement was

subsisting, valid and in full force and would be binding on the

heirs, executors, administrators and assigns of the parties to

the said Development Agreement. This was followed by a

Declaration dated 23.08.2001 by Budhiya Vesta Patel wherein

he acknowledged the rights, title and interest of the respondent

no. 9 over the suit property, the receipt of consideration of Rs

2,00,000/- and extended the period of the said Power of

Attorney indefinitely and undertook to ratify and confirm the

acts done by respondent no. 9.

12

22. The appellants have challenged the consent decree passed

by the High Court praying that the same should be set aside as

it was obtained by playing a fraud upon them. We do not feel

persuaded to hold so for a number of reasons which are being

set out in the paragraphs below.

23. It is interesting to see the appellants challenge the consent

decree passed by the High Court, particularly when each one of

them had, upon the death of Budhiya Vesta Patel, executed an

Affidavit-cum-Declaration as well as separate Powers of

Attorney dated 07.01.2005 in favour of the respondent no. 9. All

the said Powers of Attorney were irrevocable and duly registered

for valuable consideration. A bare perusal of the said Affidavits-

cum-declarations would reveal that the appellants knew that

respondent no. 9 was the constituted attorney of their

predecessor-in-interest and that the suit property had been

transferred to respondent no. 9 for a consideration of Rs

2,00,000/-. It is pertinent to note that in the said Affidavits-

cum-Declarations each of the appellants had undertaken to be

bound by all the deeds and documents entered into between

13 their predecessor-in-interest and respondent no. 9 and they had

also confirmed and ratified the said deeds and documents

thereby conferring right on respondent no. 9 to enforce those at

all times in the future. In fact, in the said affidavits, the

appellants categorically admitted the right of ownership of

respondent no. 9 over the suit property.

24. By executing the said Powers of Attorney in favour of the

respondent no. 9, the appellants had consciously and willingly

appointed, nominated, constituted and authorized respondent

no. 9 as their lawful Power of Attorney to do certain deeds,

things and matters. The relevant clauses are being extracted

hereinbelow: -

"6. To sign Petition or present Petitions or Petition, to file suit and to sign and verify claims, written statements, pleadings, applications, returns, and to appear, act in any Court- Civil, Criminal, Court Receiver and /or Revenue, original or appellate or Revisional or before any competent authority, Officer, or Officer for in respect of or in connection with the aforesaid and with buildings etc. thereon and/or any other proceedings, suit or appeal in connection with the management and superintendence of my said lands for any purpose whatsoever necessary.

14 7. To compromise, compound and/or negotiate and settle any dispute or disputes and refer the same to Arbitration."

25. It is thus crystal clear that the appellants had not only

confirmed and ratified the deeds and documents entered into

between their predecessor-in-interest and respondent no. 9 but

also constituted respondent no. 9 as their lawful attorney

authorizing him, inter alia, to sign petitions, appear before the

Courts and also to compromise or compound disputes. In fact,

the appellants are estopped from questioning the acts done by

respondent no. 9.

26. The learned counsel appearing for respondent No. 7 placed

reliance on a decision of this Court in Jineshwardas (D) by LRs.

And Ors. Vs. Jagrani (Smt.) and Another reported in (2003) 11

SCC 372 to argue that the party executing the Power of

Attorney is bound by the acts of the Power of Attorney holder

and that the Court could accept a compromise terms entered

into by the Power of Attorney holder on behalf of the parties and

that such a compromise would be a valid compromise.

15

27. We are of the considered view that in the aforesaid

circumstances, the appellants could not be said to have any

right to assail the consent decree passed by the High Court. We

do not think it proper for the appellants to question and

challenge the consent terms signed and submitted by

respondent no. 9 on their behalf which were duly accepted and

acted upon by the High Court and which we also find to be just

and reasonable. The fact that under the consent terms the

appellants were paid a sum of Rs 10,00,000/- when they were

not entitled to the same also reinforces our conviction that the

consent terms arrived at were just.

28. As noted by us in one of the preceding paragraphs, the

predecessor-in-interest of the appellants had nothing remaining

in the suit property after he had transferred the same under the

said development agreement to respondent no. 9 for a full and

final consideration of Rs 2,00,000/-. Thus, the predecessor-in

interest of the appellants had no right, title or interest

subsisting in the suit property. The appellants are the legal

heirs of Budhiya Vesta Patel and as such they could not have

claimed a title better than that of Budhiya Vesta Patel. The

16 predecessor-in interest of the appellants had relinquished his

title, right or interest over/in the suit property in favour of

respondent no. 9. A general proposition of law is that no person

can confer on another a better title than he himself has.

[Reference in this regard may be made to the decisions of this

Court in Mahabir Gope v. Harbans NArain Singh 1952 SCR

775; Asaram v. Mst. Ram Kali 1958 SCR 986 and All India Film

Corporation Ltd. v. Raja Gyan Nath (1969) 3 SCC 79.]

29. It is also the case of the appellants that there was no due

compliance with the provisions of Order 23 Rule 3. The counsel

appearing for the appellants submitted that responsibility of the

Court is to see that the consent terms have been arrived at in

satisfaction of all the parties and that injustice is not caused to

any party. The counsel further submitted that one of the modes

by which Order 23 Rule 3 ensured this was by requiring the

compromise agreement to be in writing and signed by the

parties.

30. This was strongly refuted by the counsel appearing for the

respondents stating that it is well settled that under Order 23

17 Rule 3 of the Code of Civil Procedure, 1908, a compromise may

be signed by the counsel or the Power of Attorney holder.

Counsel for the respondents referred to and relied upon the

judgment of this Court in Byram Pestonji Gariwala Vs. Union

Bank of India and Others (1992) 1 SCC 31 where it was held

thus:

"39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non- resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated."

31. It is settled position of law that the burden to prove that a

compromise arrived at under Order 23 Rule 3 of the Code of

Civil Procedure was tainted by coercion or fraud lies upon the

party who alleges the same. However, in the facts and

circumstances of the case, the appellants, on whom the burden

18 lay, have failed to do so. Although, the application for recall did

allege some coercion, it could not be said to be a case of

established coercion. Three criminal complaints were filed, but

the appellants did not pursue the said criminal complaints to

their logical end.

32. It is a plain and basic rule of pleadings that in order to

make out a case of fraud or coercion there must be a) an

express allegation of coercion or fraud and b) all the material

facts in support of such allegations must be laid out in full and

with a high degree of precision. In other words, if coercion or

fraud is alleged, it must be set out with full particulars. In

Bishundeo Narain v. Seogeni Rai reported in 1951 SCR 548 it

was held thus:

"27. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded.

28. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient

19 even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6 Rule 4 of the Civil Procedure Code."

33. In the present case, the appellants have, however, failed to

furnish the full and precise particulars with regard to the

alleged fraud. Since the particulars in support of the allegation

of fraud or coercion have not been properly pleaded as required

by law, the same must fail. Rather the Affidavits-cum-

Declarations executed by the appellants indicate that no

coercion or fraud was exercised upon the appellants by

respondent no. 8 or 9 at any point of time and thus the consent

decree cannot be said to be anything but valid.

34. In this regard, we wish to refer to the judgment of this

Court in the case of Shankar Sitaram Sontakke v. Balkrishna

Sitaram Sontakke reported in AIR 1954 SC 352 wherein this

Court while dealing with the nature of a consent decree held in

para 9 as under:

"9. The obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as

20 a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of res judicata.

35. We may also refer to the decision of this Court in

Loonkaran v. State Bank, Jaipur reported in (1969) 1 SCR 122

where interpreting Section 202 of the Indian Contract Act, this

Court held thus:

"Section 202 of the Contract Act provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such agent. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked."

36. The appellants also alleged that they had revoked the

Powers of Attorney executed by them in favour of the

respondent no. 9 by filing complaints with the police. We are of

the considered opinion that this contention of the appellants is

devoid of merit. Although there is no denying the fact that three

police complaints had been filed on three different dates with

the police against the alleged harassment and threats by

21 respondent nos. 8 and 9, it is difficult to understand how the

Powers of Attorney executed by the appellants or their

predecessor-in-interest stood revoked. The record of the case

reveals that each of the complaints was filed by a separate

person - the first complaint was filed by the appellants

themselves, the second by an Advocate and the third by one

Narendra M. Patel, who is himself a builder. It is significant to

note that all these complaints came to be filed when said

Narender M. Patel came into the picture. Further, it is

important to take note of the fact that all the Powers of Attorney

executed in favour of respondent no. 9 as also all the deeds and

documents entered into between the predecessor-in-interest of

the appellants and respondent no. 9 were duly registered with

the office of the Sub-Registrar. Neither any document nor any of

the Powers of Attorney was ever got cancelled by the appellants.

37. The appellants also further contended before us that they

had revoked the Powers of Attorney executed in favour of

respondent no. 1 by executing a fresh Power of Attorney in

favour of said Narendra M. Patel. It is significant to note that

despite filing of the complaints with the police nothing was done

22 by the appellants to bring the allegations contained in the said

complaints to the notice and knowledge of the High Court

although that could have been comfortably done had the

appellants wished to do so. The Power of Attorney in favour of

said Narendra M. Patel was executed by the appellants on

26.04.2006 whereas the first complaint was filed with the police

on 01.05.2006 and the consent terms were entered into on

22.05.2006. The consent decree was actually passed by the

High Court on 13.06.2006.

38. The appellants, thus, had ample time and opportunity

with them to bring the said allegations to the notice and

knowledge of the High Court at any time between 26.04.2006

and 13.06.2006. The appellants had considerable amount of

time available with them. As noted earlier, with regard to the

complaints filed, the appellants did not take any follow up

action to bring them their logical end.

39. It is crystal clear that the appellants chose not to avail an

opportunity which was available to them. In such

circumstances, it will not be appropriate to say that the deeds

23 and documents as well as the Powers of Attorney executed in

favour of respondent no. 9 stood revoked merely by filing

complaints with the police. We cannot lose sight of the fact that

a registered document has a lot of sanctity attached to it and

this sanctity cannot be allowed to be lost without following the

proper procedure.

40. In any event, if we direct our attention to the contents of

the Power of Attorney executed by the appellants in favour of

said Narender M. Patel, we find that the stand taken by the

appellants throughout that they had, by executing a Power of

Attorney in favour of Narender M. Patel, revoked the Powers of

Attorney executed in favour of respondent no. 9 to be baseless.

In fact, a look at the terms of the Power of Attorney executed in

favour of Narender M. Patel would show to the contrary. The

relevant portion of the said Power of Attorney is being extracted

hereinbelow: -

"6. To correspond with all the body cooperate for otherwise including government and semi- government bodies and Municipal Corporation of Greater Bombay and make applications etc. in respect of any of the matters pertaining to the said the property and the said premises.

24 AND FURTHER that these presents and the powers hereby given shall in no wise extend or be deemed or continued to extend to repeal, revoke, determine or make void any other power or powers of attorney at any time heretobefore or hereafter given or executed by us to or in favour of any other person or persons for the same or any distinct or other purpose or purposes but such power or powers shall remain and be of the same authority, validity and power, force and effect as if these presents had not been made."

(emphasis supplied)

41. Before we part with the discussion, we wish to make note

of the fact that respondent no. 9 has, in the counter-affidavit

filed in this Court, prayed for declaring the consent terms to be

cancelled and annulled on the ground that the consent terms

have been rendered infructuous due to the failure of respondent

no. 8 to perform his obligations as per the consent terms. We

have a strong feeling that a money game is being played. Since

the stakes are high, each party before us is trying to draw the

maximum advantage. To us, there seems to be no other reason

for respondent no. 9 having adopted such a course of action.

25

42. In view of the foregoing discussion, we are of the

considered view that entering into the compromise as also filing

of the same in the High court of Bombay by respondent no. 9 on

behalf of the appellants was without any fraud and well within

the scope of his authority. Accordingly, we find no merit in the

present appeals and the same are hereby dismissed. There will

be no order as to costs.

.........................................J. [Dr. Mukundakam Sharma]

................................

......J. [R.M. Lodha]

New Delhi April 21, 2010.

26