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Nityananda Panigrahi Vs. Smt. Lakhmipriya Panigrahi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. No. 91 and C.R. No. 287 of 1958
Judge
Reported inAIR1962Ori46
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151
AppellantNityananda Panigrahi
RespondentSmt. Lakhmipriya Panigrahi and ors.
Appellant AdvocateR.C. Misra, Adv.
Respondent AdvocateN.V. Ramdas, Adv. for Party 1 and ;H.G. Panda, Adv. for Party 2
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........on the real point of controversy at the stage of trial. it is sufficient to indicate that the terms of compromise, as they run, appear to be highly unconscionable. defendant no. 1 is admittedly a purdanashin lady. the signatures appearing in the compromise, in the written statement and in the vakalatnama convince me to observe that she knows nothing more than signing her own name. she is illiterate and ignorant woman. it is to be observed also, there is categorically no evidence led by the other side that this compromise was read over and explained to this ignorant and illiterate pardanashin lady before she signed the compromise and consented to the terms, which, as i have indicated above, appear to be highly unconscionable. the learned subordinate judge came to the finding on the.....
Judgment:
ORDER

S.P. Mohapatra, J.

1. These two matters have been filed by the plaintiff against the same order dated 31st July, 1958 passed by the Additional Subordinate judge of Berhampur exercising jurisdiction under Section 151 of the Civil Procedure Code in restoring the original suit to file for trial in accordance with law. The plaintiff, who is the appellant in the Miscellaneous Appeal and petitioner in the Civil Revision, had filed the suit against four defendants. Defendant No. 1 is the widow of Magata Panigrahi. Defendant No. 2 alleges himself to be the adopted son of Magata. The plaintiff is the brother of Magata. Defendants 3 and 4 are the subsequent aliences from defendants 1 and 2. The suit was brought on the assertion that defendant No. 2 was never adopted by Magata and further to set aside the alienations on the ground that they were not for legal necessity.

2. The suit was originally filed at Berhampur but it was transferred to Aska and on 16th July 1956 a compromise petition was filed which purports to have been on behalf of the plaintiff, defendant No. 1 and defendant No. 2. On the basis of this compromise a decree was passed by the Court on 28th July 1956. On 29th September 1956, however, the petition out of which the present Miscellaneous appeal and the Civil Revision arise was filed by defendant No. 1, the widow of Magata, for setting aside the compromise and, restoring the suit to file for trial in accordance with law on the ground that she was never a party to the compromise and that fraud, had been played upon her, the purdanashin widow defendant No. 1. She also made allegations that she had never authorised her pleader to compromise the suit, neither did she execute any special vakalat in favour of the pleader R.K. Panigrahi to acknowledge the compromise on her behalf in Court.

3. The learned Subordinate Judge on a discussion of the evidence on record and the circumstances transpiring has thougt fit to exercise jurisdiction under Section 151, C. P. C. in setting aside the compromise and restoring the suit to file. Against this order both the Misc. appeal and the Civil Revision have been filed. Manifestly when the order impugned is one under Section 151, C. P. C. no miscellaneous appeal lies and therefore it is dismissed. I am, therefore, to consider how far the Civil Revision deserves being allowed in favour of the present plaintiff-petitioner.

4. It will be worthwhile to indicate the terms of the compromise. Defendant No. 1 was allotted 28 acres of rain-fed and 2 acres of dry land and a thatched house; out of the same she was allowed the absolute right of alienation to the extent of 10 acres; she was authorised to retain all the movables that were of course not the subject-matter of the suit. From the rest of the lands that were vast in extent measuring over 100 acres situate in about 9 villages, the compromise recites, they can be divided between the plaintiff and defendant No. 2 and this plaintiff was allowed seven annas and defendant No. 2 was allowed nine annas but of the substantial acreage of lands. They were allowed to take immediate possession of the same. The other houses also were divided between them in different ratios. In respect of alienations, however, the purchase made by defendants 3 and 4 were upheld and confirmed according to the terms of the compromise.

5. I deliberately make no observation regarding the merits of the case and refrain from discussing the circumstances which might in any event embarrass the parties and the Court below in coming to the decision on the real point of controversy at the stage of trial. It is sufficient to indicate that the terms of compromise, as they run, appear to be highly unconscionable. Defendant No. 1 is admittedly a purdanashin lady. The signatures appearing in the compromise, in the written statement and in the vakalatnama convince me to observe that she knows nothing more than signing her own name. She is illiterate and ignorant woman. It is to be observed also, there is categorically no evidence led by the other side that this compromise was read over and explained to this ignorant and illiterate pardanashin lady before she signed the compromise and consented to the terms, which, as I have indicated above, appear to be highly unconscionable. The learned Subordinate Judge came to the finding on the materials on re-cord that the signatures do not relate to the defendant No. 1--petitioner and that she never consented to the terms of the compromise.

6. Mr. Misra, appearing on behalf of the petitioner, argues that the contesting parties, the plaintiff and defendant No. 2, were not given sufficient opportunities to place materials on record to prove the position that she was a consenting and willing party to the compromise. It appears, however, the petition for setting aside the compromise was filed on 29th September 1956, and the Misc. Case No. 14 of 1956 on the basis of this petition to set aside the compromise was fixed for hearing in the month of July 1958. It is too hard to accept the contention that during the course of two years the present petitioner and defendant No. 2 would not get sufficient opportunities for placing materials on record which may be necessary to assist the Court to come to the decision whether the terms of the compromise were read over and explained to the parties concerned. In my view, the evidence of the lawyer Shri R.K. Panigrahi was very essential and it was incumbent upon the plaintiff and defendant No. 2 to place it on record. In these circumstances, therefore, I am not inclined to send back the case for giving opportunity to the plaintiff and defendant No. 2 to place materials on record.

7. It has further been contended that the Court below had no jurisdiction to set aside the compromise under the provisions of Section 151, C. P. C. The position is clear to me and I can safely lay down the proposition that if a proceeding before a court terminates in a manner, as would appear from the circumstances, shocking to the conscience of the Court that not only sharp practices had been played upon an ignorant purdanashin lady who had been duped but that the Court feels that dust also had been thrown to the eyes of the Court itself, the court must and ought to exercise jurisdiction under Section 151, C. P, C, to remove the obstructions and impediments put in the administration of substantial justice between the parties.

In my opinion, in these circumstances there is a definite abuse of process of the Court which will lead to the exercise of jurisdiction under Section 151, C. P. C. In the circumstances transpiring in the case which I need not narrate exhaustively here, the Court was justified in exercising jurisdiction under Section 151, C. P. C. and as such both the Civil Revision and the Miscellaneous Appeals are dismissed with costs. A consolidated hearing fee is assessed at Rs. 100/- (one hundred rupees).

The costs of the case and the hearing-fees are to be realised by opposite party No. 1 Lakhmipriya Panigrahi only.


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