Karnataka High Court
Smt. Varalakshmi G Rao vs Smt. Sushma Rao on 3 November, 2022
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.18317/2022 (GM-CPC)
BETWEEN :
SMT. VARALAKSHMI G RAO
SINCE DEAD BY HER LRS
1. MR. MAHESH GUNDU RAO
S/O LATE R GUNDU RAO
AGED ABOUT 53 YEARS
R/O NO.65,
RAILWAY PARALLEL ROAD
KUMARA KRUPA WEST
BENGALURU-560020.
2. MR DINESH GUNDU RAO
S/O LATE GUNDU RAO
AGED ABOUT 51 YEARS
R/O NO.116, 3RD MAIN
6TH CROSS, RMV 2ND STAGE
BENGALURU-560 020.
... PETITIONERS
(BY SRI. SHASHIKIRAN SHETTY, SENIOR ADVOCATE FOR
SMT. LATHA S SHETTY, ADVOCATE)
AND :
1. SMT. SUSHMA RAO
W/O LATE RAJESH GUNDU RAO
AGED ABOUT 45 YEARS
CARE OF FREEDOM INTERNATIONAL SCHOOL
2
CA/33, SECTOR-4
HSR LAYOUT
BANGALORE-560 102.
2. MS ANOUSHKA RAJESH RAO
D/O LATE RAJESH GUNDU RAO
AGED ABOUT 19 YEARS
CARE OF FREEDOM INTERNATIONAL SCHOOL
CA/33, SECTOR 4 HSR LAYOUT,
BANGALORE-560102.
... RESPONDENTS
(BY SRI.DEEPAK D.C, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO a) QUASH
THE ORDER DATED 05.09.2022 MADE ON MEMORANDUM
OF COMPROMISE PETITION IN OS NO. 4897/2020 PASSED
BY THE LEARNED ADDL CITY CIVIL AND SESSION JUDGE,
BENGALURU CCH 30 AND CONSEQUENTLY ALLOW THE
MEMORANDUM OF COMPROMISE PETITION DATED
24.08.22 FILED BY PETITIONERS AND RESPONDENTS IN
OS NO.4897/2020 BY RECORDING THE SAME
(ANNEXURE-A AND B; b) DIRECTION DECLARING THAT
THE ORDER DATED 05.09.2022 MADE ON MEMORANDUM
OF COMPROMISE PETITION DATED 24.08.2022 IN OS NO.
4897/2020 PASSED BY THE LEARNED ADDL CITY CIVIL
AND SESSION JUDGE, BENGALURU (CCH 30) IS HIGHLY
ARBITRARY ILLEGAL AND OPPOSED TO THE SETTLED
LAW IN ORDER 23 RULE 3 OF CPC.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is the second effort before this Court for necessary orders on the acceptance of the compromise application filed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 [for short, 'the CPC']. The petitioners and the respondents are parties to the proceedings in O.S.No.4897/2020 on the file of the XXIX Additional City Civil and Sessions Judge, Bengaluru [for short, the civil Court]. The civil Court did not accept the application, which is filed on 08.10.2020, and consequentially, the petitioners [the plaintiffs] filed the writ petition in W.P. No.16771/2020 which is disposed of by this Court on 23.08.2022 directing the civil Court to consider acceptance of the application and to pass appropriate orders. The directions in this regard read as under:
"The Trial Court is directed to consider the acceptance of the compromise petition filed by the plaintiff Nos.1(a) and 1(b) and defendant Nos.1 4 and 2 and pass appropriate orders ensuring that it does not affect the right of defendant No.3 in respect of item No.2 of the suit schedule-A property."
2. This application is once again rejected by the civil Court for reasons that read as under:
"12. On perusal of the memorandum of compromise petition and the plaint schedule property are different with each other. The properties which are mentioned in the memorandum of compromise of petition and in the plaint schedule property are not tally with each other. In the plaint schedule property mentioned in all item Nos.1 to 10 properties but in the plaint schedule properties it is not mentioned bank account as mentioned in the memorandum of compromise petition. So also item No.1 Property mentioned in the compromise petition is different from the plaint schedule property. When the plaint schedule properties were not mentioned in the memorandum of compromise petition. However the property mentioned in the plaint schedule and property mentioned in 5 the memorandum of compromise petition boundaries of the properties are not one and the same. Same reflects different boundaries, under such circumstances the memorandum of compromise petition cannot be accepted as properties boundary mentioned in the memorandum of compromise petition and plaint schedule properties are entirely different and on the basis of the memorandum compromise petition Court cannot pass any order and also Court decline to pass the decree as prayed by the counsels. Therefore compromise petition filed by the LRs of plaintiff and defendant No.1 and 2 cannot be accepted. Accordingly, I answer Point No.1 in the Negative."
3. Sri Shashikiran Shetty, the learned Senior Counsel for the petitioners, and Sri Deepak D.C, the learned counsel for the respondents, submit that the terms of the compromise are essentially two-fold: The petitioners who were brought on record after the demise of the original plaintiff, their mother, Smt. Varalakshmi 6 Gundu Rao, are accepting the impugned release deed dated 20.08.2014 and the consequential transfer of interest in the different immovable/movable properties mentioned in the plaint in favour of the respondents and resultantly also confirm every transaction that may have been executed by the respondents in favour of third parties. In consideration thereof, the respondents accept that the petitioners will be entitled for the moveable/immovable properties that are described in the schedule appended to the compromise application. They canvass that the terms of the compromise must be read in conjunction with the description of the properties in the plaint and the description of the properties in the compromise application, and if so read, the application could not have been rejected on the ground that the description of the properties in the plaint and the application are different. 7
4. This Court must record on perusal of the pleadings in the plaint and the terms of the compromise, that these submissions stand vindicated. Therefore, the civil Court's opinion that the properties described in the plaint and the properties described in the schedule appended to the compromise application are different and do not tally and as such the application must be rejected cannot be accepted. This opinion does not consider the nature of settlement between the petitioners and the respondents.
5. Sri Shashikiran Shetty and Sri Deepak D.C also submit that given the provisions of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 [CPC] it would be open to the parties to report a compromise as regards the movable/immovable properties mentioned in the plaint and also those which are not. In support of this canvass they rely upon the decision of the Supreme Court in Ripudaman Singh vs. Tikka 8 Maheshwar Chand1, and draw the attention of this Court to the following paragraphs in the aforesaid decision:
"8. Though, the Gair Mumkin Land (Non- cultivable land) was not subject-matter of the suit, but the compromise entered between the parties before the learned Trial Court leading to decree on 3.11.1981 included such non-cultivable land. It is to be noted that compromise decree can be passed even if the subject-matter of the agreement, compromise of satisfaction is not the same as the subject-matter of the suit in terms of the provisions of Order XXIII Rule 3 of the Code of Civil Procedure, 1908. Order XXIII Rule 3 of the Code of Civil Procedure, 1908 reads thus:
"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, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, 1 (2021)7 SCC 446 9 whether or not the subject- matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:
xxx xxx."
9. Therefore, the compromise decree entered into between the parties in respect of land which was not the subject matter of the suit is valid and is thus a legal settlement. It would be relevant to notice that defendant-respondent has not disputed such settlement on any admissible grounds before any forum."
This Court must also accept this submission, and this Court must opine that there should not be any legal impediment in accepting the compromise application.
6. At this stage, both Sri Shashikiran Shetty and Sri Deepak D.C submit that the petitioners and the respondents have appeared before the civil Court and accepted the terms of the compromise in signing the order sheet but it could be that such proceedings are not presently part of the civil Court records because it is misplaced. They also further submit that there would be no difficulty for either the petitioners or the first 10 respondent to appear before the civil Court again and reiterate the acceptance of the terms of the compromise but the second respondent who is residing abroad would be constrained in appearing in person. However, the second respondent has executed a power of attorney in favour of the first respondent who is her mother and therefore, this Court must provide that the first respondent can appear before the civil Court not only for herself but also as the power of attorney of the second respondent and reiterate the acceptance of the compromise application.
For the foregoing, the petition stands disposed of by the following order observing that the civil Court must consider accepting the compromise application and drawing up of final decree in terms of such compromise with all due caution but ensuring that the parties are not driven, despite the compromise, to multiple rounds of litigation.
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ORDER [1] The petition is allowed, and the impugned order dated 05.09.2022 in O.S. No.4897/2020 on the file of the LXII Additional City Civil and Sessions Judge, Bengaluru City, is quashed.
[2] The Compromise application as filed on 24.08.2022 is restored for re-consideration and acceptance.
[3] The petitioners and the first respondent shall appear before the civil Court on 19.11.2022 for reiterating their acceptance of the terms of the compromise and insofar as the second respondent, the first respondent is reserved liberty to represent her and file a copy of the power of attorney executed by the second respondent in her favour.
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[4] The civil Court shall consider acceptance of the compromise application in the light of the submissions made before the Court as regards the consideration for the petitioners to accept the validity of the impugned Release Deed dated 20.08.2014 and the decision of the Hon'ble Supreme Court in Ripudaman Singh vs. Tikka Maheshwar Chand, supra.
[5] The registry is directed to send the trial Court records forthwith.
Sd/-
JUDGE nv