Karnataka High Court
Goudappa S/O. Bheemappa Naik vs Development Officer Karnataka ... on 14 September, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 14 t h DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
W. P. Nos.62281-282/2012 (GM-CPC)
BETWEEN:
SHRI GOUDAPPA
S/O. BHEEMAPPA NAIK,
AGE: 59 YEARS,
OCC : BUSINESS,
R/O: PLOT NO.6,
BEHIND SHAIKH BUILDING,
NEAR LAST BUS STOP,
SADASHIV NAGAR, BELGAUM.
PETITIONER
(BY SRI RAVIRAJ C. PATIL, ADV. )
AND:
1. DEVELOPMENT OFFICER
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD,
B.K. KANGRALI
INDUSTRIAL AREA BELGAUM.
2. THE JOINT DIRECTOR,
DISTRICT INDUSTRIES CENTRE,
UDYAMBAG, BELGAUM.
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3. THE DEPUTY COMMISSIONER AND
CHAIRMAN DISTRICT LEVELL SINGLE
WINDOW COMMITTEE, BELGAUM.
4. MADIVALAPPA
S/O. GURUBASAPPA MUCHALAMBI
AGE : 52 YEARS, OCC : BUSINESS,
R/O. C/O. PRAGATI OFFSET PRINTERS,
HONAGA, BELGAUM.
...RESPONDENT
(BY SRI. C.V. ANGADI, ADV.FOR R1
SRI. M.G. NAGANURI, ADV. FOR R4)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF
INDIA PRAYING TO SET ASIDE THE ORDER PASSED
ON IA NO.5 BY THE I ADDL. CIVIL JUDGE AND
JMFC, BELGAUM IN OS. NO.792/2009 DATED
05/12/2011, PRODUCED AT ANNEXURE-A,AND SO
ALSO ORDER PASSED ON I.A.NO.6 BY THE I ADDL.
CIVIL JUDGE AND JMFC, BELGAUM IN
O.S.NO.7922009 DATED 05/12/2011, PRODUCED
AT ANNEXURE-A.
THIS PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
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O R D E R
The plaintiff is in writ action against the order passed on I.A. Nos.5 and 6 in O.S. No.792/2009 on 05.12.2001 allowing the review application and setting aside the judgment and decree obtained by a compromise with the 1 s t respondent in the suit.
2. Respondent has entered contest.
3. Heard.
4. The contextual facts are:
Plaintiff had filed a suit against the 1st respondent in O.S. No.792/2009, seeking the following reliefs:
[a] A decree may kindly be passed declaring that the letter issued by the defendant No.1 bearing No.IADB/BGM/530 dated 08.06.2009/03.07.2009 posted on 08.07.2009 is illegal and void in law.
[b] A consequential relief of injunction restraining the defendants and their subordinators from allotting the suit :4: property or part of the suit property to any other third parties.
[c] Any other relief deems fit may kindlybe granted in favour of the plaintiff. [d] The cost of the suit may kindly be awarded in favour of the plaintiff.
[e] The plaintiff is produced the documents along with separate list.
5. In the suit, only the 1 s t respondent was the defendant. In response to the suit summons, the 1 s t respondent/Development Officer, KIADB, Belgaum, entered appearance. The plaintiff then filed a compromise petition under Order XXIII Rule 3 of C.P.C., under which the 1 s t defendant-Development Officer, KIADB, consented for a decree and while consenting to a decree, both plaintiff and defendant incorporated in the compromise, specific direction in the following terms:-
"5. The defendant No.1 Belgaum has to cancel the registered lease-cum-sale agreement bearing Registration No.3853 dated 14.08.2009 of M/s. Pragathi Offset Printers, Proprietor, Mr.M.G.Muchalambi.:5:
The defendant No.1 has to allot separate plot to M/s.Pragathi Offset Printers, Proprietor, Mr.M.G.Muchalambi."
The learned trial Judge accepted the terms of compromise and decreed the suit in terms of the compromise. Consequent to which the lease agreement in favour of 4 t h respondent in this case was effected.
6. The 4 t h respondent appeared before the trial court and filed an application under Order I Rule 10 of CPC to be implicated as necessary party and also sought to set aside the compromise decree passed. The plaintiff opposed the application, but the learned trial judge has allowed the application and set aside the compromise decree and ordered the applicant to be impleaded. In the resultant position, the compromise decree is set aside. Assailing which, this writ petition is filed by the plaintiff. :6:
7. The first ground is, the decree which is lawfully passed cannot be set aside by an application under Section 151 of CPC or by an application for review under Section 114 read with Order XLVII of CPC. To support this ground, learned counsel would submit the applicant was not a party to the suit. Therefore, he could not have sought for review. Even if, he was affected by the compromise decree, the only remedy available to him was to file a civil suit of a comprehensive nature to get the compromise decree declared as vitiated and not binding on him.
8. The last ground is, the compromise decree does not affect the applicant because, the plaintiff has obtained allotment from the 1st respondent earlier to the allotment made in favour of the proposed applicant.
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9. Learned counsel, Sri.M.G. Naganuri, a ppears for the applicant and has supported the impugned order.
10. It is submitted by him that the plaintiff had played a fraud by entering into compromise with the 1st respondent, consequent to which, an untenable decree has been passed. Many grounds are urged to describe the conduct of the plaintiff as most unjustified and the order passed by the trial court decreeing the suit as impermissible in law.
11. Keeping in mind what is urged by both sides, I have re-appraised the material made available on record.
12. It is interesting to note that the plaintiff had sought in the suit the reliefs referred supra and in the suit, did not implead the 4 t h respondent in this writ petition, who was a lawful allottee of the land by the 1 s t and 2nd respondents under the :8: provisions of the relevant Act and a lease-cum-sale agreement was executed in his favour. It is further to be noticed that by a compromise under Order XXIII Rule 3 of CPC, the plaintiff has not only sought to get some property for himself, but has got the allotment made in favour of the 4th respondent cancelled. The decree passed by the trial court at Item No.5 reads as follows:-
"5. The defendant No.1 Belgaum has to cancel the registered lease-cum-sale agreement bearing Registration No.3853 dated 14.08.2009 of M/s. Pragathi Offset Printers, Proprietor, Mr.M.G.Muchalambi. The defendant No.1 has to allot separate plot to M/s.Pragathi Offset Printers, Proprietor, Mr.M.G.Muchalambi."
13. This itself would mean that the plaintiff wanted the seal of the Court for an order adverse to the applicant without the applicant being heard. It is not in dispute and in fact, it is admitted by the plaintiff through the compromise petition itself that the 4 t h respondent was an allottee and had in his :9: favour a lease-cum-sale agreement executed as early as 14.08.2009 in his favour which was subsisting. He was also undoubtedly in possession. By virtue of this compromise decree, the said lease- cum-sale agreement has been cancelled. The 2 n d respondent has undertaken to do so.
14. If we go further, it is seen that the 1 s t defendant is a Development Officer, KIADB, Belgaum. The plaintiff has not stated in the plaint as to under what authority, he could allot land or to cancel the land. The Board itself is not a party in the suit. The Board actually is the authority to allot and cancel the allotment. Without making the KIADB a party in the suit, one of its officers has been brought in as the only defendant and through that Officer, a compromise has been arrived. It is clear indication of the fact that the plaintiff has indulged in act, which the applicant rightly describes as fraudulent.
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15. Secondly, it must be noticed that the trial court has ignored, plaintiff was seeking cancellation of the allotment in favour of a person, who was not a party to the suit and thus, could not have accepted the compromise petition to decree it. The trial court has committed a grave error in accepting a compromise in the absence of a person in a suit. Besides, when an application for review is filed, the plaintiff with disdainful conduct has opposed it and continued it even at the stage of High Court in this writ petition.
16. No further discussion is required as it is seen that the 1 s t defendant is not the competent authority, either for allotment of land or cancellation of land under control of the Board, since the decree is passed only by a compromise between the plaintiff and that Officer, the decree actually will not even bind the Board. The order passed by the learned trial Judge reviewing the decree passed on : 11 : compromise is the right exercise in the right direction.
17. In fact, even if the 4 t h respondent had not applied to the trial court, the trial court would have been in justified in suo moto setting aside the decree as being vitiated by fraud. That has not been done. In this view, the Writ Petition against such an order does not merit even admission and is, therefore, dismissed. The order of the trial court is confirmed.
Sd/-
JUDGE Ct: Sma/-
RKK/-