Karnataka High Court
Smt. Parvathamma vs State Of Karnataka Of Ors. on 11 August, 1998
Equivalent citations: ILR1998KAR3950
ORDER XXIII RULE 3 -- Party to a Compromise resiling from the settlement recorded by the Court on the ground of coercion -- Is it permissible. HELD -- No. It is not permissible unless there is pleading and acceptable evidence. ORDER M.F. Saldanha, J.
1. This Writ Petition has been very vehemently agitated on a point that is of considerable importance to judicial proceedings. The petitioner before me Parvathamma claims that she is entitled to the grant of occupancy rights in respect of Survey No. 43 of Ravagodlu village, Uttarahalli Hobli, Bangalore South Taluk. We are not immediately concerned with the remaining two survey numbers because those are not the subject matter of the controversy. The respondents had challenged the earlier order passed by the tribunal in favour of the petitioner before this Court more than once. On the last occasion when the litigation had been raging for 23 years, a compromise was entered into and the compromise memo was tendered to the Court. This was duly attested by the parties and their respective advocates. My brother Ramakrishna J. as he then was by order dated 4.10.96 took the document on record and it is clear from the order passed that the Court has applied its mind to the contents of the document and that it was not mechanically placed on record as sometimes happens. The order passed also indicates that the learned Judge approved of the fact that the parties have compromised the long drawn out dispute and instead of passing the final order in order to be latter perfect, sent the case back to the tribunal for the limited purpose of giving effect to the compromise. The relevant part of the order is "the land tribunal shall pass an order as per the joint application within one month from the date of receipt of this order without insisting the presence of the parties.....". This clearly shows that the learned Single Judge had sent the case back to give effect to the terms of the compromise and one of the possible reasons for it was that this Court had in a series of earlier decisions propounded the view that in relation to land reforms cases the orders conferring the rights on the parties must come from the tribunal and from no other forum.
2. Several months after this was done, the petitioner filed a writ appeal and that the compromise was entered into and the plea taken up was that "a compromise in a matter of this nature is not permissible at all," The Division Bench did not interfere with the order passed by the learned Single Judge but disposed of the appeal with an observation that "if the parties so insist, they may pursue with their objections before the tribunal, for the tribunal to appropriately consider," Thereafter, the petitioner did file her objections before the tribunal in which she raised the contention that respondents 3 to 7 are not entitled to question the grant of occupancy rights to her in respect of Survey No. 43 which is in dispute and effectively, that the terms of the so called compromise should not be given effect to; by implication, her submission was that the earlier situation must be maintained in so far as if she is entitled to occupancy rights vis.a.vis. Survey No. 43 that this position be protected, The tribunal effectively passed an order in terms of the compromise terms and it is this order that is challenged in the present proceeding.
3. Mr. Bhat, learned Counsel who represents the petitioner submitted that in the first instance, no compromise is tenable in respect of this category of cases and he therefore submitted that irrespective of whether the parties have for whatever reason submitted a document to the learned Single Judge that the Court ought to have rejected it outright on the ground that such a compromise is not tenable. He made it clear that this statement is without prejudice to his basic contention that it is the petitioner's case that the compromise entered into was not under fair circumstances in so far as she was coerced and pressurized and that consequently the entire transaction is bad in law. I basically need to deal with the first argument because the learned Counsel submitted that if it is demonstrated by a party who applies for occupancy rights that the party comes within the four corners of the Land Reforms Act, then the entitlements under that statute namely the grant of occupancy rights is something that accrues as a legal entitlement. He relied on the fact that the petitioner has come through the scrutiny process and has been successful and he submitted therefore that a competent legal forum having adjudicated in favour of the petitioner and held that she is entitled to the grant of occupancy rights that there can be no question of those rights being diluted or amended or set aside even through a compromise formula. The first part of the argument is undoubtedly correct but as far as the second aspect of the case is concerned there is a slight flaw. What needs to be pointed out is that the Land Reforms Act effectively confers a kind of bonanza on agricultural tenants but this is something that the party has to ask for and the tribunal has to examine the case and decide whether the party is entitled to it or not. These benefits do not ipso facto accrue and it must be remembered that before such an order is passed the competetive rights of the conflicting parties such as the land owners or the rival claimants are all taken into consideration and the tribunal ultimately adjudicates the issue. Situations are not unknown wherein it becomes practicable for the conflicting parties to agree to certain adjustments between themselves in order to put an end to disputes or as an over all practical via media. It would therefore be a dangerous proposition to lay down that in situations of this type, where there is long standing litigation and there are rival claimants that it would be impermissible for a Court to sanction a situation wherein the parties themselves agree to a certain amount of give and take. Where I am in agreement with Mr. Bhat is to the extent that if the formula that is placed before the Court is so manifestly unfair or one sided or unjust to one of the parties that a Court ought not to sanction any such formula but in those of the cases where the parties themselves agree to a certain amount of give and take, if it is in the interest of the parties that the Court would approve of it. Under these circumstances, I am unable to uphold the first limb of Mr. Bhat's argument that there is a total prohibition to the entertainment or acceptance of compromise formula. I need to reiterate here that situations in which a Court would sanction such an arrangement would be few and far between and further more, that it would be necessary that the arrangement does not run absolutely counter to the rules of fair play and the scheme of the law.
4. There is another aspect of the law which the Learned Counsel has overlooked. As pointed out by me earlier, it is not merely a question of automatic entitlement but it is a situation of rights and privileges that flow at the end of an adjudication. It is open to the parties in such situations to waive their rights and this is a basic proposition of law which is well recognised and a classic example could be a situation wherein between rival claimants a party agrees to accept a particular piece of land which may even be slightly smaller in area if there are other compensatory factors to justify such a situation. The compromise formula that was tendered to the Court therefore would come squarely within this class of cases wherein the petitioner herself has, pursuant to negotiations agreed to a change and it was submitted on behalf of the contesting respondents that there is valid reason for this because the petitioner herself was satisfied that she is sufficiently compensated. In this background, the fact that the application was voluntarily tendered to the Court and the fact that for a long period of time i.e. almost 9 months that no grievance was made about anything contained in the compromise formula, it is indicated that the entire challenge that was thereafter put forward on the ground that the petitioner was coerced etc., is nothing more than an after thought.
5. The second line of attack and in fact the main one as far as the pleadings are concerned is that the consent to the compromise itself is hit on the ground that the petitioner maintains that it was under coercion and undue influence that she consented to the compromise formula. Mr. Bhat harped on the fact that the petitioner is not a literate person and he also emphasised that she was completely overwhelmed by the opposite parties and that through a combination of these factors pressure was exerted on her and her consent was obtained. These submissions have been seriously rebutted by Mr. Jois who represents the contesting respondents because he was quick to point out that this is not some arrangement or agreement wherein the consent of the petitioner could be taken under duress after exerting pressure or threats but he submitted that the petitioner in this case was represented by her learned advocate, that the process has taken some time, that the consent was recorded in writing it was tendered to the Court in the presence of the parties and that if the petitioner had any reservations at any stage these would have been manifested. Obviously, what Mr. Jois was driving home was the fact that Mr. Bhat's argument, that the petitioner had been pushed into agreeing to a particular position through a combination of unfair factors cannot be accepted because she was well represented by a learned Senior Advocate who had in fact negotiated the compromise on her behalf. Obviously, the implications of these arguments are that the factors which Mr. Bhat was emphasising could have been present if the parties were negotiating on their own or through lay representatives but that this could never happen when they were represented by senior Advocates. Another aspect of the matter which Mr. Jois was very insistent upon was that even if one were to impartially examine the terms that it would be seen that the petitioner is virtually left with the lions share in so far as Mr. Jois pointed out that, she gets about 215 guntas as against about 50 guntas which the five respondents together get. Apparently, he referred to these figures only in order to try and bring home the point that even if one were to impartially test the fairness of the final solution that the Court would find it to be absolutely fair to the petitioner. This is as far as the factual aspect goes and having independently looked at the terms of the simple compromise, I do not see anything that a Court would frown upon. One needs to reiterate the fact that when parties to a litigation themselves and through their learned Counsel negotiate and settle that there are various angles and implications which the parties and learned advocates know and the bulk of which material does not even come to the cognizance of the Court and under these circumstances, it is left to the judgment of the parties and a Court would not normally interfere with what I would define as a well balanced compromise.
6. The real thrust of Mr. Bhat's argument was that the compromise formula gets vitiated in law in view of the charge made by the petitioner that it was on the basis of pressure and undue influence. In the course of the arguments, I have brought it to the notice of the learned Counsel that it is true that this contention was taken up when the appeal was filed and it is equally true that the appeal Court kept the option of the petitioner open to raise this plea before the tribunal. This is because even under the Law of Contract, where the defence is that the agreement has been obtained under unfair conditions that would effect its legality, it is always open to a party who raises this plea to attack its validity. What needs to be emphasised is that it is very well settled law that the onus of proof in ail such cases is solely and entirely on the shoulders of the party making the allegation. It is not enough to make a charge or to merely plead it in the course of a proceeding because the law recognises a position whereby once a consent is subscribed that there is total finality to that order and it will bind the party and it is only under exceptional circumstances that the Court will permit the party to reside from that position. This being the position, the petitioner merely pleading that her consent was vitiated would not be of any value because it was necessary for her to have substantiated her case before the tribunal. The petitioner was represented there and that was the stage at which the petitioner ought to have discharged this obligation. The respondents would have been called upon to defend their position only if the petitioner had discharged her obligations and not until then. The record of what transpired before the tribunal very clearly demonstrates that absolutely no material of any type was produced before the tribunal which substantiated the charge that the consent was vitiated. The tribunal was therefore fully justified in having given effect to the compromise formula and in fact, the law obliged the tribunal to do so.
7. The case does not rest there because the petitioner has challenged the order of the tribunal before this Court and the principal ground of attack is the same one. There are a very small category of cases which go by default before an initial authority and where, if an absolute case is made out at the subsequent stage to it the appellate stage or when the proceedings come to the highest Court that in the interest of justice a Court would take those factors into consideration even at a belated stage. The present petition is totally and completely devoid of any material to substantiate this plea. The last aspect of the matter is the question as to whether this Court should still give the petitioner the option of doing this. In my considered view the answer is in the negative the reason for it being that the petitioner has had three opportunities so far, the first at the original appellate stage, the second before the tribunal and the third before this Court and if absolutely nothing has emerged in three rounds of litigation, there is no question of permitting a petitioner to embarke upon a fishing enquiry by prolonging the litigation. This is the reason why, in my considered view no further options are necessary. Quite apart from this, I have already held that on a consideration of various facets of the case, factually, it is very clear that the charges that have been levelled are of no substance and that obviously, they are an after-thought and an attempt to get something more than what was originaly agreed to.
Mr. Bhat, learned Counsel who represented the petitioner had advanced one interesting argument and he was quite emphatic about it and I need to deal with it because it was undoubtedly an intelligent argument. His submission was that if the order passed by the learned Single Judge is perused and particularly the wording of the order, it will be evident that the learned Single Judge did nothing more than take the document on record and re-route the case to the tribunal. Effectively, what Mr. Bhat was strongly emphasising was the fact that the learned Single Judge had not acted on the compromise which renders the position very different to a situation wherein a Court accepts a compromise formula and passes an order or a decree in terms thereof. Mr. Bhat therefore submitted that effectively, nothing had happened in the litigation at that stage and that even as far as the remand was concerned, the petitioner after obtaining necessary advice and assistance took me matter in appeal for purpose of setting aside the order and confirming her entitlement to Survey No. 43. Once again, Mr. Bhat points out that in sum and substance, the Division Bench did not interfere with the learned Single Judge's order and he was very emphatic to point out to me that the Division Bench virtually transferred the entire issue back to the Tribunal by keeping the options of the petitioner absolutely open. To this extent, he submitted that the tribunal has misunderstood the position as though it was only required to put its imprimatur to the compromise and nothing else. His submission was that the tribunal was obliged to have reexamined the entire question namely all aspects of the compromise including the all important issue namely the question as to whether the consent was properly and legally obtained or whether it was vitiated and he submitted that not having done this, the tribunal's order would haver to be set aside and that forum must be directed to reexamined the issue. The contesting respondents have disputed this position and they have submitted through their counsel that the compromise tendered to the learned Single Judge was accepted at that stage as is evident from the wording of the order and that it was only sent to the tribunal for being given effect to. The Division Bench did not modify this order except to the extent that it kept open the right of the petitioner to present the challenge namely the charge that the compromise was vitiated.
8. To my mind, the end result of these submissions would not alter the situation at all. I cannot accept the situation that the learned Single Judge did not apply his mind to the compromise or that he did not act on it because the order itself indicates that it was because of the compromise that the Court did not examine the case on merits and adjudicate the question as to whether or not the petitioner was entitled to the occupancy rights in respect of Survey No. 43. It is also obvious from the order passed by the learned Single Judge that the Court found nothing wrong with the compromise formula which is why it was accepted, taken on record and acted upon in so far as the tribunal was directed to translate it into concrete terms. The fact that the Division Bench effectively confirmed it and the option left to the petitioner which the Division Bench has referred to, is the option which any party has in law, namely the right to challenge an order or an arrangement if it is legally vulnerable. It is not out of place for me to mention that the appeals filed by the State were also dismissed by the Division Bench though the order states that nothing survives in view of the orders passed in the petitioner's appeal. The position that ultimately emerges is that it would be difficult to at all uphold Mr. Bhat's submission that at the first and second stages before the High Court the compromise was not acted upon. I have read and reread the orders and in my considered view, the fact that the petitioner's option to challenge the order was kept open does not mean that the compromise formula had not been accepted and acted upon. I have already held that apart from merely pleading that the compromise was vitiated that absolutely no evidence of any type, not even to the slightest extent, was produced before the tribunal. The petitioner has not even filed an affidavit or made a statement before the tribunal setting out the all important ingredients as to who were the persons who pressurised her, when this was done and the exact manner in which these forces had been working on her. This is very important because the law is very clear about the fact that whereas parties often try to resile from positions that the law will never permit them to do so except in exceptional cases where it is proved to the hilt that the transaction was manifestly unfair and illegal because of extraneous influences.
9. This broadly is the complexion of the challenge presented in this case. Undoubtedly it is a long drawn out and hotly contested litigation and I am indebted to the learned advocates who have appeared in the matter for their competent handling and for the assistance but at the same time, having very carefully evaluated the factual position and more importantly the clear cut principles of law that apply to the present proceeding, I am of the view that this is not a case in which any interference is called for. Having regard to this position, the petition fails and stands disposed of. In the circumstances of the case, there shall be no order as to costs. The learned Government Advocate has been heard on behalf of respondents 1 and 2 on merits.