Karnataka High Court
Sri Hema Reddy vs Smt Jayamma on 22 August, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.35720/2015 c/w
W.P.No.36084/2015 (GM-CPC)
IN W.P.No.35720/2015
BETWEEN:
SRI HEMA REDDY
SINCE DECEASED BY HIS LRs.
1. SMT. PADMA
W/O. LATE HEMA REDDY,
AGED ABOUT 45 YEARS,
2. SRI NISHANTH
S/O. LATE HEMA REDDY,
AGED ABOUT 24 YEARS,
BOTH ARE R/AT NO.478,
VGP LAYOUT ROAD, KUDLU,
MADIWALA POST,
BENGALURU - 68. ... PETITIONERS
(BY SRI: B.R. PRASANNA, ADVOCATE)
AND:
SMT. JAYAMMA
W/O. LATE K.T. MUNIREDDY,
SINCE DECEASED BY HER LRs.
1. SRI JAYARAMA REDDY,
S/O. LATE K.T. MUNIREDDY,
AGED ABOUT 51 YEARS,
R/A KUDLU VILLAGE,
CHINNASANDRA POST,
SARJAPURA HOBLI,
ANEKAL TALUK.
PRESENTLY AT NO.482/13,
-: 2 :-
VGP LAYOUT ROAD,
KUDLU, MADIWALA POST,
BENGALURU - 560 068.
2. SMT. BHAGYAMMA
W/O. MUNIREDDY,
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 54 YEARS,
R/AT DODDAKANNAHALLI,
KARMALLARAM POST,
BENGALURU SOUTH TALUK.
PRESENTLY R/AT NO.501,
DODDAKANNA HALLI VILLAGE,
CARMILARAM POST,
SARJAPURA MAIN ROAD,
BENGALURU - 560 035.
3. SMT. RADHAMMA,
PRESENTLY ARRAYED AS RADHA,
W/O. SADHASHIVAREDDY,
D/O. LATE K.R. MUNIREDDY,
AGED ABOUT 45 YEARS,
R/AT KUDLE VILLAGE,
SARJAPURA HOBLI,
ANEKAL TALUK.
PRESENTLY R/AT NO.427,
15TH A CROSS, 9TH MAIN,
AECS LAYOUT, A BLOCK,
KUDLU, BENGALURU - 560 035.
4. SMT. RUKMINI
W/O. ASWATHA NARAYANA REDDY,
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 42 YEARS,
R/AT HALANAYAKANAHALLI VILLAGE,
BEGUR POST,
BENGALURU SOUTH TALUK.
PRESENTLY R/AT NO.18,
POOJAMMA COMPOUND,
HALANAYAKANAHALLI,
CARMILARAM POST,
BENGALURU - 560 035.
5. SMT. JAYANTHI
W/O. JAYARAMA REDDY,
-: 3 :-
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 39 YEARS,
R/AT KUDLU VILLAGE,
CHINNASANDRA POST,
ANEKAL TALUK.
PRESENTLY R/A NO.737,
A BLOCK, AECS LAYOUT,
KRISHNA MARKETING BUILDING,
NEAR KALANIKETHAN, KUDLU,
MADIWALA POST,
BENGALURU - 560 068. ... RESPONDENTS
(BY SRI: K. SRINIVAS, ADVOCATE FOR R-1;
SRI H.R. RAGHU, ADVOCATE FOR R-2 AND R-4;
SRI PRAKASH T. HEBBAR, ADVOCATE FOR R-3;
SRI M.L. PRAVEEN KUMAR, ADVOCATE FOR R-5)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
OR SET ASIDE THE ORDER DT.13.08.2015 PASSED ON I.A.NO.4
IN O.S.NO.495/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AT ANEKAL, RECALLING THE JUDGEMENT AND DECREE
DT.16.04.1997 PASSED IN O.S.NO.233/1997 ON THE FILE OF
THE SECOND ADDL. SENIOR CIVIL JUDGE, BANGALORE
DISTRICT, BANGALORE VIDE ANNX-J AND ETC.,
IN W.P.No.36084/2015
BETWEEN:
SRI JAYARAMA REDDY
S/O. LATE K.T. MUNIREDDY,
AGED ABOUT 51 YEARS,
R/AT KUDLU VILLAGE,
CHINNASANDRA POST,
SARJAPURA HOBLI,
ANEKAL TALUK - 60.
PRESENTLY R/AT: 482/13,
VGP LAYOUT ROAD, KUDLU,
MADIWALA POST,
BANGALORE - 560 068. ... PETITIONER
-: 4 :-
(BY SRI: K. SRINIVASA, ADVOCATE)
AND:
1. SRI HEMA REDDY,
SINCE DEAD BY HIS LRs
1(a) SMT. PADMA
W/O. LATE HEMA REDDY,
AGED ABOUT 45 YEARS,
1(b) SRI NISHANTH
S/O. LATE HEMA REDDY,
AGED ABOUT 24 YEARS
BOTH ARE R/AT NO.478,
VGP LAYOUT ROAD,
KUDLU, MADIWALA POST,
BANGALORE - 68.
2. JAYAMMA
SINCE DEAD BY HER LRs.
ALREADY ON RECORD.
3. SMT. BAGYAMMA
W/O. MUNIREDDY,
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 54 YEARS,
R/AT DODDAKANNAHALLI,
KARMALLARAM POST,
BANGALORE SOUTH TALUK.
BANGALORE - 560 035.
PRESENTLY R/AT NO.501,
DODDAKANNA HALLI VILLAGE,
CARMILARAM POST,
SARJAPURA MAIN ROAD,
BANGALORE - 560 035.
4. SMT. RADHAMMA
(PRESENTLY SHE ARRAYED AS RADHA)
W/O. SADHASHIVAREDDY,
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 45 YEARS,
R/AT KUDLU VILLAGE,
SARJAPURA HOBLI,
ANEKAL TALUK - 560 060.
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PRESENTLY R/AT: NO.427,
15TH A CROSS, 9TH MAIN,
AECS LAYOUT, A BLOCK, KUDLU,
BANGALORE - 560 068.
5. SMT. RUKMINI
W/O. ASWATHA NARAYANA REDDY,
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 42 YEARS,
R/AT ALANAYAKANHALLI VILLAGE,
BEGUR POST,
BANGALORE SOUTH TALUK
BANGALORE - 560 023.
PRESENTLY R/AT NO.18,
POOJAMMA COMPOUND,
HALANAYAKANA HALLI,
CARMILARAM POST,
BANGALORE - 560 035.
6. SMT. JAYANTHI
W/O. JAYARAMA REDDY,
D/O. LATE K.T. MUNIREDDY,
AGED ABOUT 39 YEARS,
R/AT KUDLU VILLAGE,
CHINNASANDRA POST,
ANEKAL TALUK - 560 060.
PRESENTLY R/AT NO.737,
A BLOCK, AECS LAYOUT,
KRISHNA MARKETING BUILDING,
NEAR KALANIKETHAN, KUDLU,
MADIWALA POST,
BANGALORE - 560 068. ... RESPONDENTS
(BY SRI: H.R. RAGHU, ADVOCATE FOR R-3 & R-5;
SRI PRAKASH T. HEBBAR, ADVOCATE FOR R-4;
SRI PRAVEEN KUMAR, ADVOCATE FOR R-6;
SRI PRASANNA B.R., ADVOCATE FOR R-1(a & b))
*****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH OR SET-
ASIDE THE ORDER DTD:13.08.2015 ON IA NO.4 PASSED IN
O.S.NO.495/2014 AS PER ANNEXURE-K ON THE FILE THE
SENIOR CIVIL JUDGE, AT ANEKAL, HAVING RECALLED THE
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JUDGMENT AND DECREE DTD:16.04.1997, PASSED IN
(O.S.NO.233/1997) ON THE FILE THE SECOND ADDITIONAL
SENIOR CIVIL JUDGE, BANGALORE DISTRICT, BANGALORE
VIDE ANNEXURE-K AND ETC.,
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, COURT MADE THE
FOLLOWING:
ORDER
These writ petitions are listed for preliminary hearing in 'B' group. With the consent of learned counsel on both sides, they are heard finally and disposed of by this common order.
2. Both these writ petitions assail order dated 13/08/2015, passed by the Court of Senior Civil Judge & JMFC at Anekal, in O.S.No.495/2014 (Old No. 233/1997). By the said order, I.A.No.4 filed under Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking recall of the compromise decree dated 16/04/1997 and for reopening of the suit have been permitted.
3. Briefly stated, the facts are that the original plaintiff Sri Hemareddy filed O.S.No.233/1997 before the Court of Civil Judge at Bangalore, seeking the relief -: 7 :- of declaration of title and consequential relief of permanent injunction. The said suit was filed on 31/03/1997 and on the same day, suit summons was issued to the defendants. Defendant No.4 is Smt. Radha. The trial Court noted that she had given a Special Power of Attorney (SPA) to her mother, Smt. Jayamma, defendant No.1 in the suit. Thereafter, on 16/04/1997, the suit was disposed of on the basis of the compromise petition filed by the parties and a compromise decree was drawn. Thus, the suit proceedings concluded. Subsequently, on 29/08/2013, an application under Section 151 of CPC has been filed by Radha defendant No.4 in the suit seeking recall of the compromise decree on the premise that it was fraudulent and that there was misrepresentation and impersonation while passing the compromise decree. By the impugned order dated 13/08/2015, passed by the Senior Civil Judge and JMFC, Anekal, within whose jurisdiction the application was maintainable, the compromise decree dated 16/04/1997 has been recalled. Being aggrieved by that order, the legal -: 8 :- representatives of deceased plaintiff and defendant No.2 in the suit have preferred these writ petitions.
4. I have heard learned counsel for the petitioners and learned counsel for the respondents, particularly learned counsel for Smt. Radha/applicant who sought for recall of the compromise decree as well as perused the material on record including the impugned order.
5. The applicant/Smt. Radha has alleged fraud, impersonation and misrepresentation amongst other reasons for recalling the compromise decree dated 16/04/1997. The application filed by her under Section 151 of CPC was considered by the trial Court and the trial Court in paragraph 12 has expressly recorded that the application could be decided after recording evidence on both sides, but in paragraph 13, the trial Court has strangely concluded that there has been fraud played on defendant No.4 (applicant/Radha) in the suit. That on 16/04/1997, she was residing in Australia and she did not execute SPA in favour of her mother/defendant No.1 -: 9 :- and hence, the compromise was fraudulently entered into by the rest of the parties as if it was with her concurrence and therefore, it is void and unlawful. Hence, the compromise is recalled.
6. Learned counsel for the petitioners contended that the observations made by the trial Court in paragraph 12 and the reason given by the trial Court in paragraph 13 as well as the decision in paragraph 14 are ex facie contradictory. When the trial Court has observed that recording of evidence on both sides was necessary, then the trial Court could not have in the same breath allowed the application without recording evidence on the said application. They contended that the applicant has acted upon the compromise decree and that in the year 2013, she has filed the application belatedly and therefore, there were several aspects of the case which require evidence to be recorded and hence, the trial Court ought to have held an enquiry on the application before allowing it on a cursory inference of the fact that the applicant/Radha was residing in Australia at the relevant point of time and therefore, -: 10 :- could not have executed the SPA dated 16/04/1997 in favour of her mother.
7. Per contra, learned counsel for the contesting respondents, supporting the impugned order contended that the trial Court was justified in allowing the application for the reason that on 16/04/1997, when the suit was at the stage of appearance of defendants, the compromise could not have been entered into on that date itself. The compromise was collusive and unlawful and against the interest of defendant No.4/Radha, the applicant and hence, the trial Court has rightly recalled that compromise decree and that there is no merit in the writ petitions.
8. Having heard learned counsel for the parties, it is noted that the suit is of the year 1997. The compromise decree, which is sought to be recalled is dated 16/04/1997. The application for recalling of the said compromise was filed on 29/03/2013. Therefore, there has been a long lapse of time between the date of compromise and the date on which recall of the same -: 11 :- has been sought. Of course, the applicant has alleged fraud vis-à-vis the compromise decree and it is a settled position of law that "fraud avoids all judicial acts, ecclesiastical or temporal" as observed by Chief Justice Edward Coke of England about three centuries ago. In S.P.Chengalvaraya Naidu (dead) by L.Rs. vs. Jagannath (dead) by L.Rs. & others [(1994)1 SCC 1], it has been held that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment and decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court, even in a collateral proceeding. When the effect of a fraudulent judgment or decree is to give it a stamp of nullity, then to obtain such a stamp of nullity, it is necessary that the allegation of fraud must be established in a Court of law. Fraud is not a innocuous allegation, but a serious allegation. No party can allege fraud and get away by alleging the same, without establishing it in a Court of law.
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9. In the circumstances, the trial Court, in paragraph 12 of the impugned order, has rightly observed that in order to establish fraud, evidence of the respective sides is necessary. But in the very next paragraph, i.e., paragraph 13, the trial Court has departed from what it has observed in the previous paragraph by holding that there is a doubt created in the mind of the Court about the signatures of defendant No.4 on the SPA. Merely on the basis of a doubt, conjectures or presumptions, the trial Court could not have recalled the compromise decree when the trial Court, at the same time, has held that evidence of the parties was necessary before coming to a conclusion that the SPA of defendant No.4 was not genuine.
10. In the circumstances, the impugned order is quashed and the matter is remanded to the trial Court. The trial Court is permitted to record evidence on the application and dispose of the same in accordance with law.
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11. As all the parties are represented by their respective counsel, they are directed to appear before the Court of Senior Civil Judge and JMFC, Anekal, on 22/09/2017, as it is stated at the bar that the suit is posted to that date, without expecting any separate notice from the said Court. Parties are directed to co- operate with the trial Court for an expeditious disposal of the application.
12. In view of disposal of the writ petitions, interim order of status quo granted on 17/07/2017 for a period of four weeks which stood expired and would not continue any longer and I.A.No.1/17 filed in W.P.No.35720/2015 stands disposed.
Sd/-
JUDGE S*