Karnataka High Court
C S Puttaswamy vs Ekbal Ahamed @ Chandu on 22 September, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:34379
CRP No. 174 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
CIVIL REVISION PETITION NO. 174 OF 2022 (IO)
BETWEEN:
1. C S PUTTASWAMY
AGED ABOUT 68 YEARS
S/O SIDDAPPA.
2. P RAJU
AGED ABOUT 47 YEARS
S/O C S PUTTASWAMY.
3. P VENKATESH BABU
AGED ABOUT 43 YEARS
S/O C S PUTTASWAMY.
Digitally signed
4. SMT P GEETHA
by AGED ABOUT 35 YEARS
DHANALAKSHMI
MURTHY D/O C S PUTTASWAMY
Location: High APPELLANTS No. 1 TO 4 ARE
Court of
Karnataka R/OF NO.770, 2ND CROSS
SHANKARAPPA LAYOUT
C R EXTENSION,TIPTUR TOWN
TUMKUR -572201.
...PETITIONERS
(BY SRI. KRISHNA S VYAS., ADVOCATE)
AND:
1. EKBAL AHAMED @ CHANDU
AGED 60 YEARS
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NC: 2023:KHC:34379
CRP No. 174 of 2022
S/O LATE MOHAMMED ZAFER
MOHIDDIN, SHIRA MAIN ROAD
KODIHALLI,
TUMKUR -572137
2. SMT NOORJAHAN
AGED 58 YEARS
W/O MAMTHAJ SHARIFF
SUNADA BEEDHI, ALUR
ALUR TALUK,
HASSAN-573213.
3. SMT SAHAJAAN BANU @ NAGINA BANU
AGED 55 YEARS
W/O LATE MOHIDDIN SHARIFF
RAILWAY QUARTERS
ARASIKERE,
HASSAN-573103.
4. SMT FARIDA BANU
AGED 55 YEARS
W/O LATE MAQBOOL AHMED.
5. MAQSOOD AHMED SHARIFF
AGED 33 YEARS
S/O LATE MAQBOOL AHMED.
6. SMT FAMEEDA BANU
AGED 30 YEARS
D/O LATE MAQBOOL AHMED
7. SMT FATHIMA BANU
AGED 28 YEARS
D/O LATE MAQBOOL AHMED
8. MOHAMMED AKRAM SHARIFF
AGED 25 YEARS
S/O LATE MOQBOOL AHMED
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NC: 2023:KHC:34379
CRP No. 174 of 2022
9. FARJAANA BANU
AGED ABOUT 23 YEARS
D/O LATE MQBOOL AHMED
R4 TO R9 ARE R/OF HOUSE NO.17
IST FLOOR, 2ND MAIN ROAD
NEW GURAPPANA PALYA
B G ROAD, BEHIND SHOBHA
MAGNOLLIA APARTMENT
BENGALURU-560029
....RESPONDENTS
(BY SRI. JAYAKUMAR S PATIL., SENIOR ADVOCATE FOR
SRI. DAYANAND S PATIL, ADVOCATE FOR R1 & R3:
SRI. A MOHAMMED TAHIR, ADVOCATE FOR R2:
SRI. SHIVARAM A BHAT, ADVOCATE FOR R4 TO R9)
THIS CRP IS FILED UNDER SECTION 115 R/W
SECTION 151 OF CPC, AGAINST THE ORDER DATED
04.12.2021 PASSED ON I.A.NO.3 AND 4 IN
OS.NO.30/2018 ON THE FILE OF THE SR. CIVIL JUDGE
AND JMFC, TIPTUR, TUMKUR, DISMISSING THE I.A. FILED
UNDER ORDER 7 RULE 11 (b) AND (d) R/W O 23 RULE
3(A) OF CPC, FOR REJECTIONS OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC:34379
CRP No. 174 of 2022
JUDGMENT
1. This petition under Section 115(1) of CPC is filed by the defendant Nos.1 to 4 in O.S.No.30/2018 before the Senior Civil Judge and JMFC, Tiptur, challenging the order dated 4.12.2021 passed on I.A.No.3 filed under Order VII Rule 11(b) and I.A.No.4 filed under order VII Rule 11(d) read with Order XXIII Rule 3-A of CPC, whereby the Trial Court has dismissed the said applications.
2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.
3. The plaintiffs filed the suit before the Trial Court for partition and declaration to declare that the compromise decree dated 9.1.1998 passed in O.S.No.132/1997 is not binding on the plaintiffs and also sought for other consequential reliefs. On service of suit summons, defendants appeared through counsel and filed written statement and they have also filed I.A.No.3 filed under Order VII Rule 11(b) and I.A.No.4 filed under order VII Rule 11(d) read with Order XXIII Rule 3-A of CPC. After -5- NC: 2023:KHC:34379 CRP No. 174 of 2022 hearing the parties, the Trial Court by impugned order dated 4.12.2021 dismissed the said applications. Being aggrieved by the same, the defendant Nos.1 to 4 have filed this appeal.
4. The learned counsel for the appellants-defendant Nos.1 to 4 has contended that the matter has been compromised between the parties and a compromise decree dated 9.1.1998 has been passed by the Trial Court in O.S.No.132/1997. Now the suit i.e., O.S.No.30/2018 has been filed challenging the said compromise decree dated 9.1.1998 is barred under the provisions of Order XXIII Rule 3-A of CPC. Therefore, the plaint has to be rejected under the provisions of Order VII Rule 11 of CPC. The Trial Court contrary to the provisions of Order XXIII Rule 3-A of CPC has dismissed the applications. In support of his contention, he has relied upon the decision of this Court in the case of R.Janakiammal -v-
S.K.Kumaraswamy reported in AIR (SC) 2021 2616 and in the case of Trilok Nath Singh -v- Anirugh Singh -6- NC: 2023:KHC:34379 CRP No. 174 of 2022 (Dead) through legal representatives and others reported in (2020) 6 SCC 629. Hence, he sought for allowing the petition.
5. Per contra, Mr.Jayakumar S Patil, learned senior counsel for the respondents-plaintiffs has not disputed the question of law decided by the Apex Court in the above said decisions. He contended that the plaintiffs have filed the necessary application for reopening the suit i.e., O.S.No.132/1997 and the applications are pending before the competent court. Hence, he contended that a direction may be issued to the Senior Civil Judge and JMFC, Tiptur to dispose of the said applications in accordance with law. In support of his contention, he has relied upon the decision of the Apex Court in the case of Sree Surya Developers and Promoters -v- N.Sailesh Prasad and others reported in (2022) 5 SCC 736.
6. Heard the learned counsel for the parties. Perused the impugned order and revision papers. -7-
NC: 2023:KHC:34379 CRP No. 174 of 2022
7. It is not in dispute that the plaintiffs have filed the suit for partition and declaration to declare that the compromise decree dated 9.1.1998 passed in O.S.No.132/1997 is not binding on the plaintiffs. It is also not in dispute that the defendants have filed I.A.No.3 under Order VII Rule 11(b) and I.A.No.4 under order VII Rule 11(d) read with Order XXIII Rule 3-A of CPC for rejection of plaint on the ground that the suit is barred under the provisions of Order XXIII Rule 3-A of CPC.
8. In O.S.No.30/2018, the plaintiffs have sought for the following reliefs:
J) zÁªÁ C£ÀĸÀÆa D¹ÛUÀ¼À°è ªÁ¢AiÀÄjUÉ vÀ¯Á 1/4£Éà »¸ÉìAiÀÄ£ÀÄß ºÉÆAzÀ®Ä CºÀðgÉAzÀÄ ¤zsÀðj¹ ¸ÀzÀj »¸ÉìUÀ¼À£ÀÄß GvÀÛªÀÄ, ªÀÄzsÀåªÀÄ, PÀ¤µÀÖ «AUÀqÀuɬÄAzÀ ¥ÀævÉåÃPÀ ¸Áé¢Ã£À PÉÆr¹PÉÆqÀ¨ÉÃPÁVAiÀÄÆ, ©) zÁªÁzÀ 1£Éà ¥ÀæwªÁ¢ w¥ÀlÆj£À ªÀiÁ£Àå ¹«¯ï dqïÓ ªÀÄvÀÄÛ eÉ.JA,J¥sï.¹ gÀªÀgÀ £ÁåAiÀiÁ®AiÀÄzÀ C¸À®Ä zÁªÁ 132/1997 gÀ°è ¥ÀqÉ¢gÀĪÀ gÁf rQæAiÀÄÄ ªÁ¢AiÀÄgÀ zÁªÁ D¹ÛUÀ¼À°ègÀĪÀ »¸Áì ºÀPÀÌ£ÀÄß §zÀÝ¥Àr¸ÀĪÀÅ¢®èªÉAzÀÄ ¤zsÀðj¸À¨ÉÃPÁVAiÀÄÆ -8- NC: 2023:KHC:34379 CRP No. 174 of 2022 ¹) zÁªÁzÀ 1 jAzÀ 4£Éà ¥ÀæwªÁ¢UÀ¼ÀÄ zÁªÁ D¹ÛUÀ¼À£ÀÄß ¸ÉÃj¹PÉÆAqÀÄ ¢£ÁAPÀ: 02.11.2015 gÀAzÀÄ ªÀiÁrPÉÆArgÀĪÀ £ÉÆAzÁ¬ÄvÀ «¨sÁUÀ ¥ÀvÀæªÀÅ ªÁ¢AiÀÄgÀ zÁªÁ D¹ÛUÀ¼À°ègÀĪÀ »¸Áì ºÀPÀÌ£ÀÄß §zÀÞ¥Àr¸ÀĪÀÅ¢®èªÉAzÀÄ ¤zsÀðj¸À¨ÉÃPÁVAiÀÄÆ
r) WÀ£À £ÁåAiÀiÁ®AiÀÄzÀªÀjUÉ vÉÆÃj §gÀĪÀ EvÀgÉ J¯Áè ¸ÀÆPÀÛ¥ÀjºÁgÀUÀ¼À£ÀÄß ªÀÄvÀÄÛ £ÁåAiÀiÁ®AiÀÄzÀ RZÀð£ÀÄß ¤Ãr ¥ÀæwªÁ¢UÀ¼À «gÀÄzÀÝ ªÁ¢AiÀÄ ¥ÀgÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæ ¤ÃqÀ¨ÉÃPÁV ¥ÁæxÀð£É.
9. One of the prayers sought by the plaintiffs in O.S.No.30/2018 is to declare that the compromise decree dated 9.1.1998 passed by the Trial Court in O.S.No.132/1997 is not binding on the plaintiffs.
10. As per Order XXIII Rule 3-A of CPC, no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Therefore, the present suit filed by the plaintiffs is not maintainable. The Trial Court without considering this aspect of the matter has erred in dismissing the applications i.e., I.A.No.3 and I.A.No.4 filed under Order 7 Rule 11 (b) and
(d) of CPC.
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NC: 2023:KHC:34379 CRP No. 174 of 2022
11. The Apex Court in the case of Sree Surya Developers and Promoters -v- N.Sailesh Prasad and others reported in (2022) 5 SCC 736 in paragraphs-13 and 14 has held as follows:
13. As observed hereinabove and it is not in dispute that as such Respondent 1-original plaintiff has already moved an appropriate application before the court concerned, which passed the decree setting aside the compromise decree by submitting an application under Order 23 Rule 3-A CPC, therefore, the said application will have to be decided and disposed of in accordance with law in which all the defences/contentions which may have e been available to the respective parties on the validity of the compromise decree would have to be gone into by the court concerned in accordance with law and on its own merits.
14. In view of the above and for the reasons stated above, the present appeals succeed. The impugned judgment and order! passed by the High Court allowing the appeal and quashing and setting aside the order passed by the d IInd Additional District Judge, Ranga Reddy District passed on 2-5-2019 in IA No. 108 of 2019 in OS No. 537 of 2018 is hereby
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NC: 2023:KHC:34379 CRP No. 174 of 2022 quashed and set aside. The order passed by the trial court dated 2-5-2019 in IA No. 108 of 2019 in OS No. 537 of 2018 rejecting the plaint is hereby restored. However, it is observed that we have not expressed anything on merits on validity of the compromise decree and the same shall have to be decided and considered by the Court e which passed the decree in an application under Order 23 Rule 3-A CPC, which as observed hereinabove has been filed by the original plaintiff and the said application be decided and disposed of by the court concerned in accordance with law and on its own merits and the contentions/defences which may be available to the respective parties on the validity of the compromise decree are kept open to be considered by the court concerned in accordance with law and on its own merits.
12. In view of the above and in the facts and circumstances of the case, this court is of the opinion that the applications i.e., I.A.No.3 and I.A.No.4 filed by the defendant Nos.1 to 4 under Order 7 Rule 11 (b) and (d) read with Order XXIII Rule 3-A of CPC deserves to be allowed. Hence, the following order is passed:
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NC: 2023:KHC:34379 CRP No. 174 of 2022 ORDER
a) The petition is allowed.
b) The impugned order dated 4.12.2021 passed by the Senior Civil Judge and JMFC, Tiptur on I.A.No.3 filed under Order VII Rule 11(b) and I.A.No.4 filed under order VII Rule 11(d) read with Order XXIII Rule 3-A of CPC in O.S.No.30/2018, is set aside.
c) I.A.No.3 filed under Order VII Rule 11(b) and I.A.No.4 filed under order VII Rule 11(d) read with Order XXIII Rule 3-A of CPC are allowed.
d) The plaint in O.S.No.30/2018 is rejected.
e) The Trial Court is directed to consider the applications filed by the plaintiff/s in O.S.No.132/1997 for reopening the suit, in accordance with law.
Sd/-
JUDGE DM List No.: 1 Sl No.: 34