Karnataka High Court
Mr Ajith Shetty vs Sri R Nagaraja on 30 November, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 21592/2021 (GM/CPC)
BETWEEN :
MR. AJITH SHETTY
S/O. B V SHETTY,
R/AT NO. 2, "NITESH",
CANARY WHAR,
BRIDE STREET,
RICHMAND TOWN,
BENGALURU - 560 025.
... PETITIONER
(BY SRI. PRAKASH B N., ADVOCATE)
AND :
1. SRI R. NAGARAJA
S/O. SRI. RAMAPPA,
AGED ABOUT 55 YEARS
R/AT NO. 63, 3RD CROSS,
C-RAMAIAH LAYOUT,
KAMMANAHALLI,
BENGALURU - 560 084.
2. SMT. VIMALA DEVI
W/O. LATE. VENUGOPAL,
AGED ABOUT 57 YEARS,
3. SMT. AISHWARAYA V G
D/O. LATE. VENUGOPAL,
AGED ABOUT 25 YEARS,
2
4. SRI. VIJAY KUMAR V G
S/O. LATE. VENUGOPAL,
AGED ABOUT 23 YEARS,
5. SRI VINAY KUMAR V G
S/O LATE VENUGOPAL,
AGED ABOUT 21 YEARS,
RESPONDENT NO. 2 TO 5 ARE
RESIDING AT NO.1/69,
V.S.T. ROAD,
ST.THOMAS TOWN POST,
BENGALURU - 560 084.
6. SMT SUNDHARA BAI
W/O.LATE SHAM SINGH,
AGED ABOUT 83 YEARS,
7. SRI RAM SINGH
S/O.LATE SHAM SINGH,
AGED ABOUT 64 YEARS,
8. SRI GANGA RAM SINGH
S/O.LATE SHAM SINGH,
AGED ABOUT 63 YEARS,
9. SRI JAGANATH SINGH
S/O.LATE SHAM SINGH,
AGED ABOUT 61 YEARS,
10. SMT SHANTHA BAI
D/O.LATE SHAM SINGH,
AGED ABOUT 58 YEARS,
11. SMT GANGA BAI
D/O LATE SHAM SINGH,
AGED ABOUT 47 YEARS,
RESPONDENT NO. 6 TO 11 ARE
R/AT NO.1863,
3
HOUSING BOARD QUARTERS,
BANGARPET, K.G.F., KOLAR DISTRICT.
REP. BY THEIR G.P.A. HOLDER
SRI R NAGARAJA, S/O SRI RAMAPPA,
AGED ABOUT 55 YEARS,
R/AT NO.63, 3RD CROSS,
C RAMAIAH LAYOUT,
KAMMANAHALLI,
BENGALURU - 560 084.
12. SMT NARAYANAMMA
W/O.LATE VENKATAPPA,
AGED ABOUT 83 YEARS,
13. SRI NARAYANAPPA
S/O.LATE VENKATAPPA,
AGED ABOUT 63 YEARS,
14. SRI NARAYANASWAMY
S/O.LATE VENKATAPPA,
AGED ABOUT 60 YEARS,
15. SRI KRISHNA
S/O LATE VENKATAPPA,
AGED ABOUT 57 YEARS,
16. SRI. NAGARAJ
S/O LATE VENKATAPPA
AGED ABOUT 50 YEARS,
17. SMT. RAMAKKA
W/O NARASYANASWAMY
MAJOR IN AGE,
RESPONDENT NO. 12 TO 17 ARE
R/AT SREE KRISHNA NAGAR
BYRATHI BANDE, KANNUR POST
BENGALURU - 560 077.
4
18. MR. SABUVARGEES
S/O T.V. VARGEES
AGED ABOUT 48 YEARS
R/AT NO. 414, 7TH C MAIN
KALYANA NAGAR
BENGALURU - 560 043.
19. MR. B MADAN KUMAR
S/O T. BALAKRISHNA
AGED ABOUT 43 YEARS
R/AT NO. 95,
RAMA TEMPLE STREET
VENKATESH PURAM
KADUGONDANAHALLI,
BENGALURU - 560 045.
20. MR. G. RAVI
S/O M. GUNDAPPA
AGED ABOUT 45 YEARS,
61, M.S. BUILDING
3RD MAIN ROAD,
VIVEK NAGAR
BENGALURU - 560 047.
21. MR. THANKAMMA ALEXANDER
S/O K.G. ALEXANDER
AGED ABOUT 60 YEARS
R/AT NO. 466/D
SHAJAN VILLA
S.R. LAYOUT, N.A.L ROAD,
MURUGESHPALYA
BENGALURU - 560 017.
22. SMT. ANNAMMA ZACHARIAH
D/O ZACHARIAH K.J
AGED ABOUT 69 YEARS
R/AT NO. 246, MES ROAD
GOGULA, BENGALURU - 560 005.
5
23. MR. FRANKLIN ALBERT ANTHONY CRASTA
S/O LATE JOHN BAPTIST CRASTA
AGED ABOUT 69 YEARS
R/AT S-3, "EASTERN COURTS"
24, COLES ROAD, FRAZER TOWN
BENGALURU - 560 005.
24. MR. SAIFUDDIN
S/O LATE SHAMSUDDIN
AGED ABOUT 55 YEARS
R/AT NO. 41, 3RD CROSS
A CROSS, KANAKADASA EXTN.
ST. THOMAS TOWN
BENGALURU - 560 084.
25. MR. GOVINDA RAJU H
S/O SMT. SUBBAMMA
AGED ABOUT 43 YEARS
R/AT OLD SCHOOL LANE
NAGAVARA,
ARABIC COLLEGE POST
BENGALURU - 560 045.
26. SMT. AMBIGA D.M
W/O S. JAYAPAUL
AGED ABOUT 71 YEARS
R/AT NO.13,
RATHAN SINGH ROAD
FRAZER TOWN,
BENGALURU - 560 005.
27. MR RAMESH S R
S/O LATE S R RAMASWAMY
AGED ABOUT 51 YERS,
R/AT KEERTHI ORNATTA
APARTMENTS
C V RAMAN NAGAR MAIN ROAD,
NAGAVARA PALYA
BENGALURU - 560 043.
6
28. SRI ONNONNIKUNJUMON
S/O ABRAHAM ONNONNI
AGED ABOUT 53 YEARS,
HEBRON HOUSE,
PERINGALA POST,
KAYAMKULM KERALA
NOW TEMPORARILY
R/AT NO.93/5, COX TOWN,
CHARLES COMPBELL ROAD
BENGALURU - 560 005.
29. MR M. P. SHEKAR
S/O LATE D G MUNNUSWAMY
AGED ABOUT 56 YEARS,
NO.28, RATANSINGH ROAD
FRAZER TOWN, BENGALURU - 560 005.
30. MR CHEN RAJ R
S/O P ROYCHAND
AGED ABOUT 50 YEARS,
RESIDING AT NO.130,
WHEELERS ROAD,
COX TOWN, BENGALURU - 560 005.
31. SMT NARESH WOHI
S/O R S WAHI
MAJOR IN AGE,
R/AT D G SHARADHA VRIDHAVAN APT
NO.470, KUNDALAHALLI
A E C S LAYOUT
BENGALURU - 560 037.
32. RAMAN MULTHARI
S/O SRI KRISHNAN MULTARI
MAJOR IN AGE,
R/AT 302, SORRUNTO
PALMGROVE ROAD, VICTORIA LAYOUT,
BENGALURU - 560 047.
7
33. SMT SHERLEY BIJU
S/O BIJU THOMAS
MAJOR IN AGE,
R/AT NO.101
SAI SADAN APARTMENTS
PAI LAYOUT OLD MADRAS ROAD,
DOORAVANINAGAR
BENGALURU - 560 016.
34. R. VAIDYANATHAN
S/O RAMACHANDRAN K
MAJOR IN AGE,
R/AT MARUTHI NAGAR,
NEW TIPPASANDRA POST
MALLESH EXTN
BENGALURU - 560 075.
35. MALLIKARJUN B M
S/O B KALLESHAPPA
MAJOR IN AGE,
R/AT 978, 1ST MAIN ROAD,
GOKUL 2ND STAGE,
DIWANARAPALYA
BENGALURU - 560 054.
36. MR JAISON DANIEL
S/O SRI P G DANIAL
MAJOR IN AGE,
R/AT CHANDRANAPPLY
PATTANTHITTA - 689 648
KERALA STATE.
37. SMT PAVITHRA A CHERIAN
D/O AJITH CHERIAN
MAJOR IN AGE,
R/AT NO.337, 4TH D CROSS,
H R B R LAYOUT,
KALYAN NAGAR
BENGALURU - 560 043.
8
38. PETULA ALLEN SCOTT
D/O C A BESTERWATCH
MAJOR IN AGE,
R/AT NO.201,
3RD E CROSS,
BENGALURU - 560 043.
39. K. SADHIK BASHA
S/O SRI K N KHADER WOLI
MAJIR ON AGE,
R/AT NO.147, VIGNANA NAGAR,
MAIN ROAD, NEW TIPPASANDRA
BENGALURU - 560 043.
40. BIJU THOMAS
S/O SRI V J THOMAS
MAJOR IN AGE,
R/AT NO.101,
SAI SADAN APT PAI LAYOUT,
OLD MADRAS ROAD,
DOOR VANI NAGAR
BENGALURU - 560 016.
41. SHIVAJI JOTIRAM NIMASE
S/O JOTIRAM DERORAO NIMASE
MAJOR IN AGE,
R/AT NO.42, 1ST FLOOR,
ANJANEYA SWAMY TEMPEL STREET
MARAPPA GARDEN
BENGALURU - 560 046.
42. PAUL SANTHEES
S/O ALPHONS SANTHEES
MAJOR INAGE,
R/AT NO.14,
HEAVENS VILLAGE
2ND CROSS, MALLAPPA LAYOUT,
BABUSABAPALYA
BENGALURU - 560 043.
9
43. SMT MARY S JACOB
W/O SRI SUNNY JACOB
MAJOR IN AGE,
RESIDING AT NO.224,
3RD E CROSS, HRBR III BLOCK
BENGALURU - 560 043.
44. SRI F R SANDEEP
S/O SRI F R GEORGE,
MAJOR IN AGE,
RESIDING AT NO14,
HEAVENS VILLAGE
2ND CROSS, MALLAPPA LAYOUT,
BABUSABARAPALYA
BENGALURU - 560 043.
45. SRI MATHEW K VERGHESE
S/O SRI K M VERGHESE
MAJOR IN AGE
RESIDING AT NO.4
9TH CROSS, 9TH MAIN
HENNUR CROSS
BENGALURU - 560 043.
46. S RAVI KRISHNAN
S/O LATE B S SAMPATH
AGED ABOUT 66 YEARS,
R/AT NO.15, 9TH CROSS
KARMACHAND LAYOUT
LINGARAJAPURAM
BENGALURU - 560 084.
47. MR. SAFEERUDDIN S
S/O LATE SHAMSHUDEEN
AGED ABOUT 57 YEARS,
R/O NO.76/1, 2ND CROSS
GOSPEL STREET
ST.THOMES TOWN POST
BENGALURU - 560 084.
10
48. SRI S JAYAPAUL
S/O LATE SRI P SINDURAJ
AGED ABOUT 79 YEARS,
R/AT NO.13
VEENA VIKAS NILAYAM
RATHAN SINGH ROAD
NEAR CLEARANCE HIGH SCHOOL
FRAZER TOWN
BENGALURU - 560 005.
49. DIVYA JOCOB
D/O SRI SUNNY JOCOB
AGED ABOUT 38 YEARS,
RESIDING AT NO.224
3RD E CROSS, HRBR III BLOCK
BENGALURU - 560 043.
50. SMT.ANGELINA SALOMIE JEEVAPUSHPAM
ALIAS ANGELINA SALOMIE J
W/O MR GERSSON EDINBARO
AGED 39 YEARS
R/AT NO 650
POONAMALLEE HIGH ROAD
AMINIJIKARAI - 600 029
CHENNAI, TAMILNADU.
51. SMT.CABRINI SOLOMON
W/O SRI SOLOMON SELVARAJ
AGED 57 YEARS
NO 7, "SOCCER NIKETAN"
1ST CROSS, OIL MILL ROAD
SAIL PALYAM
ST THOMAS TOWN POST
BENGALURU - 560 084.
52. SOLOMON SELVARAJ R
S/O SRI RATHNAM M J
AGED 66 YEARS
NO 7, SOCCER NIKETHAN
1ST CROSS, OIL MILL ROAD
11
SAIT PALYAM
ST THOMAS TOWN POST
BENGALURU - 560 084.
53. SMT. HELEN PARTHIBA PAUL
W/O SRI TEHOPHILUS DANIER PAUL
AGED 57 YEARS
R/AT NO 1, RAILWAY STATION ROAD
BENGALURU - 560 005.
54. JOSSY THOMAS
S/O THOMAS VARGHESE
AGED 47 YEARS
NO 26/12, DCA COMPLEX
SOMESHWARAPURA EXTN
ULSOOR, BENGALURU - 560 008.
55. SRI M J RAJU
S/O LATE SRI CHERIYAN YOHANNAN
AGED ABOUT 60 YEAS
NO.1436, 3RD CROSS
OPP BMTC DEPOT
HENNUR MAIN ROAD
KALYAN NAGAR POST
BENGALURU - 560 043.
56. SMT SHEELA RAJU
W/O SRI M J RAJU
AGED ABOUT 56 YEARS
NO.1436, 3RD CROSS
OPP BMTC DEPOT
HENNUR MAIN ROAD
KALYAN NAGAR POST
BENGALURU - 560 043.
57. SMT. MARY RAJU MATHEWS
W/O LATE SRI RAJU MATHEWS
AGED ABOUT 71 YEARS
NO.139, 2ND D CROSS
OMBR LAYOUT
12
NEAR VINCENT POLLOTTI CHURCH
BANASWADI MAIN ROAD
BENGALURU - 560 043.
58. MR. MAXMELBIN NESON
S/O MR A I NESON
AGED ABOUT 45 YEARS
"RAGHAVENDRA NILAYA"
PNS LAYOUT
SUBBANNAPALYA EXTENSION
BENGALURU - 560 043.
59. SMT M. JAYASHREE
W/O MR. MAXMELBIN NESON
AGED ABOUT 42 YEARS
RAGHAVENDRA NILAYA
PNS LAYOUT
SUBBANAPALYA EXTENSION
BENGALURU - 560 043.
60. SMT. REGENA CLEMENT
W/O MR SAMSON FREDRIC GILBERT
AGED ABOUT 52 YEARS
R/AT NO.3849
KLAHANIE DRIVE
SE-98074 USA.
61. SMT. S. GAJALAKSHMI
AGED ABOUT 47 YEARS,
RESIDING AT NO. 591,
HBR LAYOUT, 4TH BLOCK
9TH MAIN (NEAR NOORANI MASJID)
KALYANANGARA POST
BENGALURU - 560 043.
62. SRI. SAJI MON LUKOSE
S/O LUKOSE Y
AGED ABOUT 57 YEARS
#3/2683/14, FLAT 3C,
SFC PATTOM SQUARE
13
PATTOM PLACE P.O & VILLAGE
TRIVENDRUM - 695 004.
63. SMT. SUJATHA,
W/O MALLAPPACHIMMU MALIGE
AGED ABOUT 41 YEARS,
NO. 29, K.G. HALLI
POLICE QUARTERS,
BENGALURU - 560 045.
64. SRI. VIKRANTH MOHAN RAO
S/O LATE MR. MOHAN RAO M
AGED ABOUT 47 YEARS
DOOR NO. 114, 1ST CROSS
VOIVEKANANDA NAGAR,
NEAR OASIS BAKERY
MARUTHI SEVA NAGAR POST,
BENGALURU - 560 033.
RESPONDENTS NO. 47 TO 64 ARE
REPRESENTED BY GPA HOLDER
MR. JAGADEESH.R
S/O T. RAMMAPPA
RESIDING AT # LIG, 6TH A MAIN
2ND STAGE, KHB LAYOUT,
BENGALURU - 560 079.
... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 17.9.2021 PASSED BY THE II
ADDITIONAL CIVIL JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU IN O.S.NO.348/2018, REJECTING THE
APPLICATION FILED U/S 152 OF THE CODE OF CIVIL
PROCEDURE (AT ANNEXURE-A) AND FURTHER ALLOW
THE SAID APPLICATION.
14
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The first defendant in O.S. No.348/2018 on the file of the II Additional Civil Judge, Bengaluru Rural District, Bengaluru (for short, 'the civil Court'), notwithstanding the closure of the suit by the compromise decree dated 3.9.2021 has presented this petition. The petitioner is aggrieved because the civil Court by the impugned order dated 17.9.2021 has rejected the petitioner's application under Section 152 of CPC to correct the description of the boundaries of the property mentioned in the Schedule appended to the decree.
2. The first to eleventh respondents have filed the suit in OS No.348/2018 for injunction against the petitioner and many others. However, the petitioner [one of the defendants] and the other parties to the suit 15 have filed a detailed application under Order XXIII Rule 3 of CPC, and the terms of the compromise are essentially in two-folds. Firstly, the defendants have confirmed the respondents - plaintiffs' title to the subject properties under the sale deeds mentioned in Paragraph- 2(c)(ii) and secondly, they have withdrawn their claim under the respective sale deeds mentioned in Paragraph-2(iii) acknowledging that they are not in possession of the respective portions. The parties have also, as part of their compromise petition, mentioned specific boundaries to the subject properties. The civil Court has accepted the application under Order XXIII Rule 3 of CPC directing decree in terms of the compromise with the direction that the compromise petition shall be treated as part of the decree.
3. Sri B.N.Prakash, the learned counsel for the petitioner, submits that the schedule appended to the decree should read as mentioned in the compromise 16 petition and as such, the petitioners have filed necessary application. In the schedule appended to the compromise petition, unlike in the schedule to the plaint, the survey numbers of the adjacent properties are mentioned. He canvasses that there should be no legal hurdle in this regard because the provisions of the Order XXIII Rule 3 of CPC enable recording a compromise when the parties have settled a whole of the dispute, or part of it, by a lawful agreement so long as the agreement relates to the parties to the dispute whether the compromise relates to the subject matter of the dispute or not.
4. Sri B.N. Prakash, on the contents of a decree, even a compromise decree, relies upon the provisions of Order XX Rule 6 of CPC as amended for the State of Karnataka and submits that these provisions do not restrict the description of the property in the decree as reflected in the compromise petition 17 notwithstanding the description in the plaint. On the civil Court's reference to the provisions of Section 17 of the Indian Registration Act, 1908 in rejecting the petitioner's application, Sri B.N. Prakash submits that the reference to the provision is not appropriate in the facts and circumstances of the case. As regards the petitioner's interest in prosecuting the proceedings for correction of the compromise decree, Sri B.N.Prakash submits that after the compromise, a firm, which includes the petitioner as a partner, has purchased the subject properties from the respondents- plaintiffs.
5. On a careful consideration of the submission, and on perusal of the records, this Court is persuaded to opine that the civil Court could not have rejected the petitioner's application referring to Section 17 of the Indian Registration Act, 1908 and the civil Court should have considered the petitioner's application in the light of the provisions of Order XXIII 18 Rule 3 of CPC which enables lawful settlement even insofar as those properties that are not subject matter of the dispute as described in the plaint schedule.
Therefore, the petition is allowed. The impugned order is invalidated and the petitioner's application under Section 152 CPC is restored for reconsideration by the civil Court dispensing with notice to the respondents.
SD/-
JUDGE nv