Karnataka High Court
Shri.Rajakasab S/O Mastakasab Athani vs Shri.Umarasab S/O Mastansab Athaniand ... on 10 April, 2017
Author: B.Veerappa
Bench: B.Veerappa
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
WRIT PETITION NO.202768/2015 (GM-CPC)
BETWEEN:
Shri Rajakasab S/o Mastakasab Athani
Age : 45 Years,
Occ : Agriculture,
R/o Kudagi,
Tq. Basavana Bagewadi,
Dist. Vijayapur.
... Petitioner
(By Sri Huleppa Heroor, Advocate)
AND:
1. Shri Umarasab S/o Mastansab Athani,
Age : 53 Years,
Occ : Agriculture,
R/o Kudagi,
Tq. Basavana Bagewadi,
Dist. Vijayapura-586101.
2. Mazan W/o Aminsab Dalawai,
Age 35 Years,
Occ Household Work,
R/o Managulli,
Tq. Basavana Bagewadi,
Dist. Vijayapura-586101.
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3. Paraveen W/o Abdul Hameed Gaded,
Age : 36 Years,
Occ : Household Work,
R/o Kudagi,
Tq: Basavana Bagewadi,
Dist. Vijayapur-586101.
4. Sahebhusen S/o Umarasab Atani,
Dead by LRs:-
4(a) Shri Khashimsab S/o Sahebhusen,
Age : 35 Years,
Occ : Agriculture,
R/o Kudagi,
Tq: Basavana Bagewadi,
Dist. Vijayapur-586121.
4(b) Smt. Khajabai W/o Daulsab,
Age : 30 Years,
R/o Sirval, Near Babaleshwar,
Tq. & Dist. Vijayapur-586121.
... Respondents
[By Sri Ashok S. Kinagi, Advocate for R1 to R3, R4 (a), R4(b)]
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to call for the records,
persue and issue a writ of certiorari by quashing the order
passed by the Civil Judge (Jr.Dn.) and JMFC and Conciliator
Lok Adalath at Basavana Bagewadi in O.S.No.405/2011,
compromise petition dated 14.12.2011 compromise decree
dated 18.04.2012, and license agreement dated 01.08.2014,
which are placed at Annexure 'D', Annexure 'C' Annexure 'E'
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and Annexure 'K' and restore the matter to its original file,
etc.
This petition coming on for orders this day, the Court
made the following:
ORDER
The defendant No.2 has filed the present writ petition for writ of certiorari to quash the order passed by the learned Civil Judge, Senior Division, JMFC and Conciliator Lok Adalath at Basavana Bagewadi in O.S. No.405/2011 dated 14.12.2011 and the compromise decree dated 18.04.2012 as per Annexures-D and C respectively.
2. It is the case of the petitioner that respondent Nos.1 to 3 filed suit for partition in O.S. No.405/2011 on 05.12.2011 against the petitioner and respondent Nos.4(a) and (b). Without issuing notices from the Court and without the knowledge of the petitioner, respondent Nos.4(a), (b) and respondent Nos.1 to 3 4 behind back of the petitioner obtained an illegal decree. They have managed in such a way that though the suit is filed on 05.12.2011, the same came to be decreed before the Lok Adalath on 14.12.2011 without engaging an Advocate. Respondent Nos.1 to 3 have managed to get the same by misrepresenting the Court.
3. It is the specific case of the petitioner that he is not aware of the compromise entered into between the parties. Though his thumb impression was found in the second page of the compromise petition but according to the petitioner he has not signed the compromise. Therefore, he is before this Court to quash the alleged compromise entered between the parties as per the Annexures-C and D and final decree and an agreement in pursuance of the alleged compromise.
4. I have heard learned counsel for the parties to lis.
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5. Sri. Huleppa Heroor, learned counsel for petitioner vehemently contended that the impugned order, compromise decree and subsequent final decree proceedings and agreement are erroneous and contrary to law. He further contended that respondent Nos.1 to 3 have obtained orders before the Lok Adalath by filing false petition for compromise by forging the signature of the petitioner and arranging a fictitious person in place of petitioner and obtained an illegal order. Therefore, the impugned order is illegal and is liable to be quashed.
6. He further contended that the petitioner, respondent Nos.1 to 3 are none other than the brothers and sister, how can there be no share in the property stated to be held jointly . Therefore he sought to set aside the impugned order passed by the trial court as per Annexures-C and D consequently Annexures-E and K. 6
7. Per contra Sri. Ashok S. Kinagi, learned counsel for the respondents sought to justify the impugned order passed by the trial court and contended that if any fraud is alleged to have been played before the trial court, the petitioner has to approach the same court and the present writ petition filed is not maintainable. He further contended that since the petitioner also signed the compromise at second page as LTM of Razak Sab, there is no fraud as alleged by the petitioner. Therefore, sought for dismissal of the writ petition.
8. Having heard learned counsel for the parties to lis, it is clear that respondent Nos.1 to 3 filed O.S. No.405/2011 for partition and separate possession in respect of property bearing Sy.No.469/2 measuring 6 acres 7 guntas assessed at Rs.5-01 in 1/8th share in respect of suit property contending that the suit 7 schedule property is joint family property of plaintiffs and defendants, and plaintiffs are entitled to share.
9. The case was posted to consider advancement application on 14.12.2011. Counsel for the plaintiffs filed advancement application for settlement of compromise. Hence, the matter was taken on 14.12.2011. On that day Sri S.L. Golasangi, learned counsel filed Vakalathnama for defendant Nos.1 an 2. Sri S. A. Yaranal filed I.A.No.1 under Order 6 Rule 17 CPC. Sri S.L.Golasangi, learned counsel submitted no objection to allow I.A.No.I. Plaintiff was permitted to carry out the amendment. Both the parties filed joint memo and also filed joint compromise petition. Hence, matter was referred to Lok Adalath on that day i.e. on 14.12.2011. On the same day the case was called before the Lok Adalath. Conciliation was held. The plaintiffs and present petitioner and their advocates and conciliators were present. Both the parties have filed 8 compromise petition under Order 23 Rule 3 CPC. The contents of the joint compromise petition was read over to both the parties, they have admitted the same as true and correct and consented for compromise. Plaintiff Nos.1 to 3 signed order sheet and defendant Nos.1 and 2 put their LTM.
10. It is seen from the compromise petition that there is no share seems to be allotted to the petitioner. The specific contention of the petitioner that there is fraud played by the plaintiffs on the defendant No.2 who is the present petitioner and no share was allotted. The same is objected by Sri Ashok S. Kinagi, learned counsel for the respondents-plaintiffs and he submits that 1 acre was given to him as per sketch-K. Since petitioner filed present writ petition stating that there was fraud played by the respondents by filing compromise petition Annexure-C and subsequently decree came to be passed, therefore it is for him to file 9 application before the concerned court as contemplated under provisions of Order XXIII Rule 3 and Rule 3-A of CPC. If such an application is filed, the concerned court has to consider the same and pass an order in accordance with law.
11. It is relevant to state at this stage that in an identical circumstances Hon'ble Supreme Court in the case of R. Rajanna vs. S.R. Venkataswamy and others reported in (2014) 15 SCC 471 held as under:
"10. Order 23 Rule 3 and Rule 3-A of CPC may at this stage be extracted for ready reference:
"3. Compromise of suit. - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, 10 compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise, or satisfaction is the same as the subject-matter of the suit:
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule."
11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other 11 denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to 12 lawfulness of the agreement or compromise is raised before the Court that passed the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3A of CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No.5326 of 2005 to challenge validity of the compromise decree, the Court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3A of the CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No.5326 of 2005 and if the plaint in the suit has been rejected to pursue 13 his remedy against such rejection before a higher Court.
12. The upshot of the above discussion is that the High Court fell in a palpable error in directing the plaintiff to take recourse to the remedy by way of separate suit. The High Court in the process remained oblivious of the provisions of Order 23 Rules 3 and 3A of the CPC as also orders passed by the City Civil Court rejecting the plaint in which the Trial Court had not only placed reliance upon Order 23 Rule 3A but also the decision of the Court in Pushpa Devi's case holding that a separate suit was not maintainable and that the only remedy available to the aggrieved party was to approach the Court which had passed the compromise decree. The following passage from the decision of Pushpa Devi case is, in this regard, apposite:
"17. ..Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a 14 decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8- 2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not 15 maintainable, having regard to the express bar contained in Section 96(3) of the Code."
We may also refer to the decision of this Court in Banwari Lal v. Chando Devi where also this Court had observed:
"13. ... As such a party challenging a compromise can file a petition under proviso to Order 23 Rule 3, or an appeal under S. 96(1) of the Code, in which he can now question the validity of the compromise in view of Order 43 Rule 1-A of the Code."
12. In view of the dictum of the Hon'ble Supreme Court stated supra and in view of the provisions of Order XXIII Rule 3A of CPC, it is always open for the petitioner to file necessary application before the Senior Civil Judge, JMFC, Basavana Bagewadi to recall the alleged fraud entered into between the parties. If such an application is filed, the Civil Judge shall consider and pass orders strictly in accordance with law in the 16 light of the dictum of the Hon'ble Supreme Court stated supra. All the contentions of both parties left open.
13. The petitioner is permitted to file application before the Civil Judge, within two weeks from the date of receipt of certified copy of this order. If such an application is filed the trial court shall consider the same strictly in accordance with law and pass orders within a period of two months from the date of filing of such application.
With the above observations, writ petition is disposed of.
Sd/-
JUDGE RSP