Karnataka High Court
Smt Sushma W/O Sunil Telkar vs Smt Sunita W/O Rajmohan Sutrave on 23 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104723 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. SUSHMA W/O. SUNIL TELKAR,
AGE: 53 YEARS, OCC: BUSINESS,
R/O. TELKAR BUILDING, NEAR KCC BANK,
SUBHASH ROAD, DHARWAD-580008.
2. SUSHMITA D/O. SUNIL TELKAR,
AGE: 25 YEARS, OCC: BUSINESS,
R/O. TELKAR BUILDING, NEAR KCC BANK,
SUBHASH ROAD, DHARWAD-580008.
3. SONALI D/O. SUNIL TELKAR,
AGE: 21 YEARS, OCC: BUSINESS,
R/O. TELKAR BUILDING, NEAR KCC BANK,
SUBHASH ROAD, DHARWAD-580008.
...PETITIONERS
(BY SRI. PAVAN B. DODDATTI, ADVOCATE)
GIRIJA A
BYAHATTI AND:
Location: HIGH
COURT OF SMT. SUNITA W/O. RAJMOHAN SUTRAVE,
KARANTAKA
DHARWAD AGE: 59 YEARS, OCC: HOUSEWIFE,
BENCH
R/O. TELKAR BUILDING, NEAR KCC BANK,
SUBHASH ROAD, DHARWAD-580008.
...RESPONDENT
---
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED COMPROMISE
ORDER AND DECREE AT ANNEXURE-C AND D IN O.S.38/2023 DATED
11/02/2023 PASSED BY THE COURT OF THE PRIL. CIVIL JUDGE AND
JMFC, DHARWAD, AT DHARWAD BEFORE LOK-ADALAT, IN THE
INTEREST OF JUSTICE AND EQUITY.
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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 19.08.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
1. Heard the learned counsel for the petitioners. This
matter is listed for preliminary hearing.
2. The petitioners are before this Court seeking for the
relief of writ of certiorari to quash the impugned
compromise order and decree dated 11.02.2023
passed by the Court of Principal Civil Judge and
JMFC, Dharwad before the Lok Adalath, in
O.S.No.38/2023 produced at Annexures 'C' and 'D'
and any suitable orders in the interest of justice and
equity.
3. The factual matrix of the case of the petitioners is
that;
3.1. The respondent has filed a suit for declaration
in O.S.No.38/2023 before the Court of Principal
Civil Judge an JMFC, Dharwad against the
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petitioners, making serious allegations against
them and deceased Sunil Telkar, who died on
14.08.2022 and copy of the plaint is also
annexed as Annexure-A.
3.2. It is contended that, after registration of suit on
11.01.2023, suit summons was issued to the
petitioners on the same day and counsel for the
plaintiff prayed to issue summons by hand and
further made a submission before the Court
that the matter is likely be settled. Hence hand
summons issued to the defendants returnable
by 25.01.2023 and the counsel Sri. MNK filed
power for defendants on the same day.
3.3. It is also contended that, both the parties and
their respective advocates were present and
filed application for compromise before the
Court. The Trial Court, considering the same,
made a note that they have admitted the
contents of the compromise and parties have
entered into compromise voluntarily and the
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matter was posted for consideration of
compromise petition before the Lok Adalath on
11.02.2023. A copy of the compromise petition
is also produced at Annexure-B and also the
order sheet in O.S. NO.38/2023 is produced at
Annexure-C.
3.4. It is contended that the compromise petition
was perused and the same was filed before the
Court on 25.01.2023. Accordingly instead of
referring the matter to Lok-Adalath, the Court
itself has observed that the compromise is
admitted and voluntarily recorded the
compromise. The Lok-Adalath without
consideration and following the guidelines,
passed the impugned order and copy of the
compromise decree dated 11.02.2023 is
produced at Annexure-D.
3.5. Being aggrieved by the impugned order and
decree dated 11.02.2023, the present writ
petition is filed stating that the petitioners have
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no other alternative remedy except to file this
writ petition.
4. Learned counsel for the petitioners in his arguments
would vehemently contend that;
4.1. The impugned compromise order and decree
are contrary to law and is against elementary
aspect of judicial functioning of Lok Adalath.
The Trial Court erred in not looking into the fact
that a compromise petition was filed before the
Court on 25.01.2023 and once the compromise
petition was filed before the Court and
thereafter the matter is referred to Lok Adalath,
which in itself is a procedural irregularity and
contrary to Order XXIII Rule 3 of CPC and
hence the impugned order and decree is not
sustainable in the eye of law.
4.2. It is trite law that, when there is no dispute
pending between the parties and parties have
presented the compromise petition before the
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Court, then it is the duty of the Court to record
such compromise and referring a settled matter
to Lok Adalath is clearly farce as per the
general directions issued by this Court and
hence it is contended that the impugned order
is liable to be set aside.
4.3. The counsel also vehemently contend that, the
settled proposition of law is that, when the
defendants are ready to file compromise
petition even before rendering their appearance
in the matter, the Court has to take note that
something is fishy about the compromise and
the Trial Court has not considered that the suit
summons were not even served to the
defendants through registered post, but still the
defendants appeared and filed Vakalath and
filed application for compromise on the date of
appearance itself and the same is nothing but
with an intention to take away the rights of
other coparceners.
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4.4. It is also contended that the deceased Sunil
Telkar who is the husband of petitioner No.1
and father of petitioner No.2 and 3, expired on
14.08.2022 and the suit is instituted on
07.01.2023 i.e., immediately after four months
of his death and as the petitioners were under
deep sorrow having lost the bread earning
member of the family, by taking undue
advantage of the same, the respondent has
planned a case against the petitioners by
making serious allegations against the
deceased and surprisingly, on the day of issuing
summons to the petitioners, the counsel
appearing for the respondent makes a
submission saying that the parties are likely to
settle the matter before the Court. Hence he
prayed the Court to issue writ in the nature of
certiorari quashing the impugned order and
decree passed in O.S.No.38/2023.
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4.5. The counsel in support of his arguments relied
upon the judgment of the Hon'ble Apex Court in
the case of State of Punjab and Another Vs.
Jalour Singh and Others reported in (2008)
2 SCC 660, wherein it is held that, the Lok
Adalath cannot enter into an adversarial
adjudication akin to a court of law and their
functions relate purely to conciliation and must
be based on compromise or settlement between
the parties; in case no compromise or
settlement can be arrived at, case record must
be returned to the court from which it was
received, for disposal by the said court in
accordance with law. The counsel also brought
to the notice of this Court paragraph 12 of this
judgment and would vehemently contend that
this Court can exercise the powers under
Articles 226 and 227 of the Constitution.
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4.6. He also relied upon the judgment dated
21.02.2014 passed by this Court in
W.P.No.63372/2012 (Smt. Akkubai Vs. Shri.
Venkatrao and Others) and contended that,
if any compromise is entered between the
parties before the Court and if the matter is
referred to the Lok Adalath, an observation is
made that this Court not only cannot be a silent
spectator of this illegalities, it is the bounden
duty of this Court to interfere with such illegal
awards and set aside the same and restore the
valuable rights of the immovable properties of
the parties, which is taken away through the
process of Lok Adalath.
4.7. The counsel also relied upon the judgment of
this Court dated 31.03.2022 passed in
W.P.No.103766/2018 (Smt. Renuka Vs. Sri.
Ramanand and another), wherein also the
relief is sought to quash the compromise decree
dated 26.07.2014 in O.S.No.246/2014 and
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exercising the writ jurisdiction this Court
quashed the same and guidelines are also
issued regarding how to compromise the matter
before the Lok Adalath.
4.8. The counsel also relied upon the judgment of
this Court dated 02.02.2024, passed in MSA
No.100010/2021 (Smt. Shantawwa Vs. Shri.
Hanamant Bhimappa Bhajantri), wherein
also this Court relying upon the judgment
passed by the Hon'ble Apex Court in the case of
Bhargavi Constructions Vs.Kothakapu Muthyam
Reddy, reported in (2018) 13 SCC 480 and
other judgments, made a discussion with
regard to the compromise decree and held that
the only remedy available for the respondent,
who is said to have cheated by impersonation
and compromise decree came to be passed, is
to approach the High Court in a writ petition
under Articles 226 and 227 of the Constitution
of India.
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5. Having considered the grounds which have been
urged in the petition as well as the principles laid
down in the judgments referred supra and also
considering the Annexure-A plaint, the suit is filed for
the relief of declaration to declare that the registered
Gift Deed dated 14.08.2022 pertaining to the suit
property executed by the deceased Sunil Telkar
S/o.Vishwanathrao Telkar, in favour of defendant
No.1 is void ab initio and non-est. Having considered
the compromise petition in terms of Annexure-B,
petitioners are also parties to the same and even
their photos are also affixed on the compromise
petition. No doubt when the matter was taken up
before the Court on 25.01.2023, both the parties and
their respective counsels were present and filed the
compromise petition under Order XXIII Rule 3 of CPC
and the contents of the said application was also
read over to the parties and they admitted the same
as true and correct. The Trial Court also made an
observation that, 'It appears that parties have
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entered compromise voluntarily', and referred the
matter to Lok Adalath to be held on 11.02.2023. It
is also important to note that, the parties were
present before the Court on 25.01.2023 along with
their advocates and once again they were present
before the Lok Adalath on 11.02.2023. The order
sheet before the Lok Adalath also discloses that the
parties and their respective advocates are present
and parties have also produced copies of their
Aadhar Cards. A reference is made that, by perusing
the compromise petition filed by the plaintiff and
defendants dated 25.01.2023, satisfied with the
terms of compromise petition and also noted that
voluntarily the parties have filed the compromise
petition and the same is in accordance with law. The
compromise petition is accepted and directed the
office to draw decree as per the compromise petition
and accordingly the decree is drawn in terms of
Annexure-D.
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6. Now the main contention of the counsel for the
petitioners is that, the compromise was entered
surprisingly on the very first day of appearance of
parties and Court has to take note of the order sheet.
The plaintiff himself made a representation before
the Court on 11.01.2023 that the matter is likely to
be settled and prayed the Court to issue hand
summons and the same was issued. The parties have
voluntarily appeared before the Court on 25.01.2023.
Not only they have appeared on 25.01.2023 before
the Court, but they have also appeared before the
Lok Adalath on 11.02.2023. It is the allegation that
surprisingly the compromise was entered between
the parties and nothing is pleaded before the Court
that fraud is played in getting the matter
compromised and obtaining the decree. When the
parties voluntarily appeared before the Court as well
as before the Lok Adalath, whether such fraud was
taken place or not, this Court cannot decide the said
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issue in a writ petition filed under Articles 226 and
227 of the Constitution of India.
7. No doubt the counsel for the petitioners has relied
upon the judgment of the Hon'ble Apex Court in the
case of State of Punjab and Another Vs. Jalour
Singh and Others reported in (2008) 2 SCC 660,
and so also relied upon the judgment of this Court
dated 14.06.2024 passed in RSA No.9/2018 (Sri.
N. Umesha Vs. Smt. Bhagyamma and others),
wherein this Court held that, if the parties are not
parties to the compromise, then they can file an
independent suit. The counsel also relied upon the
judgment dated 31.03.2022 passed by this Court in
W.P.No.103766/2018 (Smt.Renuka Vs. Sri.
Ramanand and another), wherein discussion was
made that, when the matter is referred to Lok
Adalath, separate order sheets would have to be
opened and it is for the Court to record the
compromise and not refer the matter to the Lok
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Adalath and the compromise petition was filed before
the Court when the parties were present before the
Court and parties have admitted the terms of
compromise and no doubt this Court has also given
guidelines in the said order. The counsel also relied
upon the judgment of this Court dated 11.04.2023
passed in W.P.No.100756/2019 (Miss. Swati Vs.
Shri Satish), wherein also the writ petition was
allowed.
8. Having considered the principles laid down in the
judgments referred supra and also taking note of the
grounds which have been urged, this Court has also
pointed out that there was no allegation with regard
to impersonation, though counsel would contend that
the decree is obtained by impersonation, and the
said submission is contrary to the pleadings before
the Court. The only allegation is that the procedure
has not been followed. When the ground is also
urged that the Court erred in not looking into the fact
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that the deceased Sunil Telkar expired on
14.08.2022 and the suit is filed immediately and
submission was made that the parties are likely to
compromise the matter and filed the compromise
petition before the Court and in both the occasions,
parties were present before the Court. What made
them to appear before the Court personally while
entering into compromise and even appearing before
the Lok Adalath on subsequent date also, the same
has to be explained by the petitioners and that
disputed facts cannot be decided in the writ petition.
Hence, the petitioners have to approach the very
same Court and explain what made them to appear
before the Court as well before the Lok Adalath.
Having perused Annexure-B also, it is seen that the
petitioners have affixed their photos on the
compromise petition and signed on the very same
photographs and also signed the compromise petition
and appeared before the Court. When such being
the case, unless the same has been explained before
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the very same Court in which the compromise is
recorded, this Court cannot sit and evaluate the
same even in respect of the observations made in
the order.
9. This Court would like to rely upon the judgment of
the Hon'ble Apex Court in the case of Pushpa Devi
Bhagat Vs. Rajinder Singh and Others reported in
(2006) 5 SCC 566, wherein it is held, if it is a
consent decree, the modes of recourse available
against that is, no appeal is maintainable against the
said decree in view of specific bar under Section
96(3) of CPC; no appeal is maintainable against the
order of the court recording or refusing to record a
compromise, in view of the deletion of Order XLIII
Rule 1(m) of CPC; the consent decree can only be
set aside on an application made under the proviso
to Rule 3 of Order XXIII of CPC, on the ground that
there was no compromise. A discussion was also
made with regard to Section 96(3) of CPC, Order
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XLIII Rule 1(m) of CPC and also no independent suit
can be filed for setting aside the compromise decree
on the ground that the compromise was not lawful in
view of bar contained in Rule 3-A and further held
that consent decree operates as an estoppel and is
valid and binding unless it is set aside by the court
which passed the consent decree, by an order on an
application under the proviso to Rule 3 Order 23
CPC. This judgment is passed in the year 2006 itself
and the said judgment is even prior to the judgment
of Jalour Singh's case (supra) in 2008, which is a
Larger Bench judgment. But the principle laid down
in the Larger Bench is not pertaining to the issue
involved between the parties in the present case on
hand and also the Larger Bench held it is for the
limited grounds if no compromise and if consent
between the parties.
10. This Court also would like to rely upon the judgment
of the Hon'ble Apex Court in the case of R. Rajanna
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Vs. S. R. Venkataswamy and Others reported in
AIR 2015 SC 706, wherein the Hon'ble Apex Court
has categorically held that, considering Order XXIII
Rule 3A compromise decree and party disputing the
lawfulness of compromise, the Court which passed
the decree alone can consider the lawfulness of
compromise and it cannot direct parties to file
separate suit. The party on rejection of the suit for
setting aside the compromise decree applying to the
court to pass decree to consider lawfulness of
compromise, the rejection of such application with a
direction to a party to pursue its suit is against the
provisions of Order XXIII Rule 3-A CPC and in the
said judgment, the Hon'ble Apex Court also
discussed the judgment in the case of Pushpa Devi
Bhagat Vs. Rajinder Singh and Ors. reported in AIR
2006 SC 2628.
11. This Court also would like to rely upon the judgment
of this Court in the case of Kasturevva Hemappa
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Basureddy Vs. Smt. Jayashree W/o.Late
Basavareddy Basureddy reported in AIR 2015
Kar 190, wherein this Court referring to Order XXIII
Rules 3 and 3A of CPC and also Article 226 of the
Constitution of India, while considering the
compromise decree held that, the party disputing
about awareness of contents of compromise and
decree is alleged to be fraudulent, validity/lawfulness
of decree can be determined only by Court which
passed the decree and the writ petition assailing the
compromise decree is not maintainable.
12. This Court also would like to refer to the judgment of
the Hon'ble Apex Court in the case of Triloki Nath
Singh Vs.Anirudh Singh (dead) through Legal
Representatives and Others reported in (2020) 6
SCC 629, wherein the Hon'ble Apex Court has
categorically discussed Section 96(3) as we well as
Order XXIII Rules 3 and 3A and Order XLIII Rule 1-
A(2) of CPC and also discussed with regard to the
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compromise decree and clarified the law regarding
independent suit filed by stranger to compromise
challenging lawfulness of such compromise decree
and non-maintainability of separate suit challenging
the compromise decree, the person questioning
lawfulness of compromise must approach the same
court which recorded compromise. Even it is held
that the civil proceedings challenging the legality of
compromise is not maintainable and such strangers,
who are not party to compromise, would not have
cause of action to file separate suit to challenge the
legality of the compromise. The law is very clear
with regard to even a person questioning the
lawfulness of the compromise must approach the
very same court which recorded the compromise.
The Hon'ble Apex Court also discussed the earlier
judgment in the case of Pushpa Devi (supra) and R.
Rajanna (supra).
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13. This Court also would like to rely upon the judgment
of the Hon'ble Apex Court in the case of Sree Surya
Developers and Promotes Vs. N. Sailesh Prasad
and Others reported in (2022) 5 SCC 736, wherein
also the Hon'ble Apex Court discussed the scope of
Order XXIII Rule 3A of CPC and held that an
independent suit challenging the compromise
/consent decree on ground that compromise on
which decree is based was not lawful and further
held that the proper remedy for challenging the
compromise/consent decree on the ground that it is
not lawful, reiterated, is to approach the same court,
which had passed the compromise/consent decree,
which the plaintiff in the said case had already done
by filing an appropriate application and said
application, held to be decided in accordance with
law, though the plaint in the suit in question had
been rightly rejected.
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14. This Court also would like to refer the judgment of
this Court in the case of K.Srinivasappa and
Others Vs. M. Mallamma and Others reported in
ILR 2023 KAR 1277, wherein also it is held that, it
is settled position of law that where the allegation of
fraud is made against a party to an agreement, the
said allegation would have to be proved strictly, in
order to avoid the agreement on the ground that
fraud was practiced on a party in order to induce
such party to enter into the agreement. Similarly,
the terms of a compromise decree cannot be
avoided, unless the allegation of fraud has been
proved. In the absence of any conclusive proof as to
fraud on the part of the objectors, the High Court
could not have set aside the compromise decree in
the present case. The Hon'ble Apex Court also while
discussing Section 21 of the Legal Services Authority
Act, 1987, equates an award of the Lok Adalath to a
decree of a Civil Court and imputes an element of
finality to an award of compromise passed by the Lok
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Adalath. When the Lok Adalath disposes cases in
terms of a compromise arrived at between the
parties to a suit, after following principles of equity
and natural justice, every such award of the Lok
Adalath shall be deemed to be a decree of a Civil
Court and such decree shall be final and binding
upon the parties.
15. Having considered the principles laid down in the
judgments referred supra and also the contention of
the petitioner's counsel and also the judgments relied
upon by the petitioner's counsel and particularly the
judgment of the Hon'ble Apex Court in Jalour
Singh's case (supra) relied upon by the petitioner's
counsel, in the said case, in paragraph No.12 it is
held that, normally a proper Lok Adalath award is
final and binding and becomes executable as if it is a
decree of a civil court and no appeal lies against it to
any court and it is specifically held that, it can be
challenged on very limited grounds. The petitioner
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has not made out any limited ground challenging the
same before this Court invoking Article 226 and 227
of the Constitution of India. The very specific case of
the petitioner before this Court is that the
respondent No.1 has played fraud on the Court as
well as the petitioner. When the said allegation is
made, the same cannot be questioned in a writ
petition, that too a disputed fact of fraud cannot be
decided in writ proceedings under Article 226 of the
Constitution of India. In the judgments which have
been referred by this Court, it is very clear that the
party who alleges fraud and questions the lawfulness
of the compromise has to approach the very same
Court as held throughout from 2006 onwards till
date, as I have discussed in detail above.
16. It is also important to note that, the main grievance
of the petitioners is that the compromise was
recorded without following the procedure and
surprisingly the compromise was entered on the very
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first day of appearance of the petitioners. No doubt I
have also pointed out that, on the first day itself the
plaintiff himself made a submission that the matter is
likely to be settled and taken hand summons and this
Court cannot find fault with the same. Even if hand
summons was taken against the petitioners, the very
petitioners have appeared before the Court not only
on the next date of hearing, but even before the Lok
Adalath also. As I have already pointed out, what
made the petitioners to appear personally or whether
any intentional fraud was played against them, the
same has to be explained before the very same
Court, in which the compromise was recorded and
the said fact also cannot be decided in a writ petition
filed under Article 226 of the Constitution of India.
The Trial Court only after recording the evidence on
the application filed by the petitioners, can come to
the conclusion, whether the petitioners have been
subjected to fraud and their signatures have been
obtained by making misrepresentation. What made
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them to sign the compromise petition and appear
before the Court and even before the Lok Adalath
has to be considered by the very same Court and
hence this Court cannot entertain the petition under
Article 226 of the Constitution of India. Hence the
petitioners are given liberty to approach the very
same Court and explain the circumstances under
which they entered into compromise, since they are
parties to the compromise. In the judgments which
have been referred by this Court from 2006 to till
date, it is categorically held that, if there is any such
fraud in the compromise or consent is obtained
fraudulently, the parties have to approach the very
same Court questioning the lawfulness and
correctness of the compromise.
17. In view of the observations made above, I pass the
following:
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ORDER
i. Writ petition is dismissed. ii. Petitioners are given liberty to approach the very same Court by making appropriate application and redress their remedy in the Court where the compromise is recorded.
Sd/-
(H.P. SANDESH) JUDGE gab ct-mck List No.: 1 Sl No.: 85