1992 PLP 640 (MLD)

2. As a matter of fact the order passed by this Court on 30‑3‑1987 is neither the judgment nor the decree. It is simply an order where by a Misc. Application (C.MA. No.4867/86) was disposed of by the Court. This was an application moved by the defendant for seeking a direction of the Court to the plaintiff to deposit an amount of Rs.1,43,000 in the Court which was received by the plaintiff from the defendant himself in furtherance of reached between them through the elders of the family on 3‑11‑1982. As would appear from para. 4 of the affidavit of the defendant filed in support of C.MA. No.4867/86, according to the settlement of 3‑i1‑1982 the defendant was to pay in all Rs.3 lacs but had till then only paid Rs.1,43,000.1t was further averred by the defendant in the same affidavit that since a receiver had been appointed by the Court, there was no justification for the plaintiff to retain the said sum of Rs.1,43,000 and that the, amount should rather be deposited in the Court and should remain there till the final disposal of the suit. According to the learned counsel for the defendant, the following portion of the said order of 30‑3‑1987 was the result of misrepresentation of the plaintiff: ‑ "The defendant will be the sole proprietor of the factory and the business and tenancy will also remain in the name of the same concern of which the defendant will be the sole owner:"

3. I fail to see how the above quoted portion from the order of this Court amounts to misrepresentation or fraud on the part of the plaintiff. The order was passed in the open Court. If any fact was not4ncorporated correctly in the said order, it might amount to an error or inadvertence on the part of the Court and by no stretch of imagination can it be called a fraud and misrepresentation on the part of the plaintiff. It may be noted that the suit was not disposed of through this order and it was only a civil miscell4neous application, which was disposed of through it.

4. It was on 14‑4‑1987 that the parties had filed a compromise application under Order 23, rule 3, C.P.C. in which the parties had desired that the suit be decreed in terms of the order, dated 30‑3‑1987 subject to the condition that if the defendant committed any default in compliance of the C order dated 30‑3‑1987, the decree‑holder would be entitled to proportionate cost as prayed in the suit and recover the decretal amount or any part thereof through the execution of the decree. , On the basis of this compromise application the suit was decreed the next day on 15‑4‑1987. Now, if there was any misrepresentation on the part of the plaintiff on the basis of which Court order, dated 30‑3‑1987 had been passed, the defendant would not have so thoroughly relied upon it and he would not have prayed for the decreeing of the suit in terms of the said order of 30‑3‑1987.1 have already held above that there was no misstatement of fact on the part of the plaintiff nor any fraud or misrepresentation had been committed by him on 30‑3‑1987 but even if it were to be conceded that the plaintiff had done so, the fact that the defendant relied upon that very order for the final disposal of the suit shows beyond any shadow of doubt that the defendant had affirmed as correct every word of that order.

5. It may also be noted that the defendant had moved C.MA. No.5149/87 on 21‑11‑1987 which was under Order 39, Rule 1, C.P.C. and even on that stage he was relying on the said order of 30x3‑1987 and had not claimed that the plaintiff had played any fraud or misrepresentation upon him.

6. It is also worth noting that the defendant had moved C.MA. No.6623 of 1988 on 26‑9‑1988 in which he had made the same accusation against the plaintiff and had desired the Court to take appropriate legal action against him for making misstatement at the time of the disposal of C.MA. No.5149 of 1987 on 30‑3‑1987. This Court dismissed this application vide order dated 16‑4‑1989 and while dismissing this application this Court made the following t observations:‑‑‑ "It is not necessary to decide this controversy as from consent order, dated 30‑3‑1987 (which is erroneously typed as 20‑3‑1987) it is quite clear that both the parties jointly stated before the Court at the time of passing the above order that upon payment of Rs.1,53,000 the defendant will become the sole proprietor of the Firm . ...There is n6 indication in the joint statement that the tenancy at that time stood in the name of any other person or that some steps were required to be taken by the plaintiff to get the tenancy changed in the name of the Firm."

7. As would appear from the extract of the order of this Court dated 16‑4‑1989, this dispute stands settled and the defendant cannot be suffered to make it the subject‑matter of this subsequent application under section 12, C.P.C. For the same reason reference of learned counsel for the defendant to note dated 24‑11‑1984, which was signed by both the parties and is appended to this J. Misc. Application as Annexure B' and in which Mirza Mehmood Beg plaintiff had undertaken all the responsibilities (including financial liability) for changing the rent receipts in the name of Mirza Islam Beg, is uncalled for.

8. Learned counsel for the defendant had relied upon AIR 1930 Lah. 937 and AIR 1956 SC 162 but under the circumstances of the case, as discussed above, both these authorities have no relevance to the point at issue.

9. In short, I am of the view that no fraud or misrepresentation of any sort was committed by the plaintiff on 30‑3‑1987 when the impugned order was passed, that this controversy was brought before this Court and was fully discussed and was finally rejected vide order dated 16‑4‑1989, that at any rate the averments made by the parties before the Court on 30‑3‑1987 and the order of the Court of that date both stand merged in the final order, dated 15‑4‑1987 whereby the suit was finally decreed by way of compromise and therefore the controversy now raised by the defendant through this application under section 12 of C.P.C. actually amounts to circumventing the provisions of law under which a compromise decree cannot be assailed except on the ground of fraud and misrepresentation. The alleged fraud and misrepresentation, even if it were to be conceded that it was committed by the plaintiff, was not the basis of the compromise decree. The defendant had fully known the contents of the order of the Court dated 30‑3‑1987 and it was on the basis of this order that the compromise decree was passed and therefore the compromise decree is free from any allegations of fraud and misrepresentation. In view of this position I find no merit in this application and would therefore dismiss the same with costs. M‑1730/K Application dismissed.