Karnataka High Court
Kishore S/O Baldev Bajaj vs Sri Basavaraj S/O Namasayya Ramaswami ... on 23 August, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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WP No. 103856 of 2024
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
R
WRIT PETITION NO. 103856 OF 2024 (GM-RES)
BETWEEN
KISHORE S/O. BALDEV BAJAJ,
AGE: 61 YEARS, OCC: BUSINESS,
R/O. BAJAJ VILLAH BAJAJ AVENUE,
A-01-A-09, SANGOLI RAYANNA NAGAR,
TQ: AND DIST: DHARWAD-580002.
...PETITIONER
(BY SRI. V.M. SHEELVANT, ADVOCATE)
AND:
1. SRI. BASAWARAJ
S/O. NAMASAYYA RAMASWAMI HIREMATH,
AGE: 71 YEARS, OCC: RETIRED
PROFESSOR/AGRICULTURIST,
R/O. HIREMATH VILLA,
GIRIJA A
BYAHATTI SANGOLLI RAYANNA NAGAR,
Location: HIGH
TQ: DHARWAD-580001.
COURT OF
KARANTAKA
DHARWAD
BENCH SMT. SAROJA W/O. SOMASHEKAR NEELAGAR,
(SINCE DECEASED HER LR'S ARE ALREADY ON
RECORD AS RESPONDENT NO.2 & 3)
2. SHRI SOHAN S/O. SOMASHEKAR NEELAGAR,
AGE: 27 YEARS, OCC: BUSINESS,
R/O. H.NO.504/4, VIJAYALAXMI BUILDING,
2ND MAIN ROAD, 4TH CROSS, M.B. NAGAR,
KOPPADKERI, TQ: AND DIST: DHARWAD-580001.
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3. SMT. SUMAN D/O. SOMASHEKAR NEELAGAR,
AGE: 23 YEARS, OCC: HOUSEHOLD,
R/O. H.NO.504/4, VIJAYALAXMI BUILDING,
2ND MAIN ROAD, 4TH CROSS, M.B. NAGAR,
KOPPADKERI, TQ: AND DIST: DHARWAD-580001.
4. SHRI MAJARKHAN
S/O. MUNIRAKHAN JHAHGIRDAR,
AGE: 39 YEARS, OCC: BUSINESS,
R/O. PANCHAKSHRI STREET,
KAMANKATTI ROAD, DHARWAD-580001.
5. SHRI ASHOK S/O. BHOJARAJ SHETTY,
AGE: 41 YEARS, OCC: BUSINESS,
R/O. NEAR POLICE STATION,
KALAGHATAGI, DIST: DHARWAD-580001.
6. SHRI MAHESH S/O. MUDDANNA SHETTY,
AGE: 54 YEARS, OCC: BUSINESS,
R/O. H.NO.155P, "SAI ROOP" KIADB LAYOUT,
HALIYAL ROAD, TAL AND DIST: DHARWAD-580001.
7. SHRI SHRIKANT JAYARAM BHAT,
AGE: MAJOR, OCC: BUILDER AND DEVELOPER,
R/O. SUBRAMANYANAGAR, BENGALURU-560001.
...RESPONDENTS
(BY SRI. VISHWANATH HEGDE, ADV. FOR R1 & R5 & R6;
SRI. SOURABH HEGDE, ADV. FOR R2 & R3;
SRI. A.P. HEGDE, ADV. FOR R7)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AND QUASH THE DECREE 25/6/2022 PASSED
IN MEGHA LOK ADALATH IN O.S.NO.101/2021 PRODUCED AT
ANNEXURE-V, AND CONSEQUENTLY RESTORE THE SUIT IN
O.S.NO.101/2021 ON THE FILE OF II ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, DHARWAD, IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.
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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 14.08.2024, 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 petitioner and also
learned counsel appearing for the respondents.
2. The petitioner is before this Court seeking for the
relief of writ of certiorari or any other appropriate
writ, order or direction to quash the decree dated
25.06.2022 passed in Megha Lok Adalath in
O.S.No.101/2021 produced at Annexure-V and
consequently to restore the suit in O.S.No.101/2021
on the file of II Additional Senior Civil Judge and
JMFC, Dharwad and grant such other reliefs as
deemed fit in the circumstances of the case.
3. The factual matrix of the case of the petitioner is
that;
3.1. The petitioner hails from a well known business
family dealing with Automotive and a major
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Dealer of Ashok Leyland parts and was working
as a Chief Executive Sales Officer for 14
Industries.
3.2. The petitioner came in contact with respondent
No.1 and his family, as respondent No.1
showed interest in purchasing property
belonging to the petitioner, more fully
described in the suit.
3.3. As the respondent No.1 was retired professor,
he could not mobilise the amount of sale
agreement and he expressed his desperate
need of house and requested to handover the
house by assuring payment within 3 months,
and further to gain confidence of the petitioner,
he agreed to sell his property bearing
Sy.No.217 and 218 measuring total 10 Acres
situated at Yerikoppa Village.
3.4. The petitioner believing the words of
respondent No.1, handed over his residential
house and entered in to an Agreement of Sale
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by creating interest in the property and further
he had executed General Power of Attorney on
19.07.2016 in favour of the petitioner as an
alternate option of clearing all litigation over
the property and for realisation of said
property.
3.5. The respondent No.1 had induced the petitioner
to make investment for development of the
litigated landed properties belonging to him and
the petitioner, believing the words of the
respondent No.1 formed one Partnership under
the name and Style "Earthly Solution."
3.6. Respondent No.1 and his son thought of
developing their litigated properties through the
petitioner and assured him those properties will
become the assets of the Partnership Firm and
assured returns on the investments made.
Accordingly, both respondent No.1 and his son
entered MOU.
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3.7. The petitioner by taking hard earned money of
his father, nearly more than Rupees 3.8 crores
invested in the litigated land belonging to
respondent No.1.
3.8. Respondent No.1 also had executed one more
General Power of Attorney in respect of one of
the litigated properties continuing the interest
over the property as an assurance for the
investment made by the petitioner and his
family members and promised that, after
litigation he will sell that property to the
petitioner's family members mentioning the
earlier General Power of Attorney and
Agreement of Sale.
3.9. Respondent No.1 after receipt of sale
consideration amount of two properties, he did
not pay amount to the petitioner saying that he
got his daughter and son's marriage and
assured that, after receipt of the sale
consideration of two properties, he will pay off
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his investments and his profit sharing amount
and for assurance he executed one registered
sale agreement and one registered General
Power of Attorney with respect to property
bearing Sy.No.217/2 and 218/2.
3.10. Further, respondent No.1 executed one more
Special Power of Attorney in respect of property
bearing Sy.No.217/1 and 281/1 total measuring
9 Acres 36 Guntas. It is also the averment
that, respondents No.2 and 3 along with their
mother are trying to create right over that
property based on the concocted deed and
requested the petitioner to clear off the
property and realise the same and setoff the
amount from the sale consideration amount.
3.11. The petitioner, as per the request of respondent
No.1, has filed RTS Appeals in RTS Appeal
No.6/2021 and RTS Appeal No.9/2021 in
respect of properties bearing Sy.No.217/1
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281/1 totally measuring 9 Acres 36 Guntas, by
engaging an advocate Shadab H Yadwad.
3.12. Further, respondents Nos.2 and 3 have created
agreement of sale in favour of respondents
No.4 to 6 who are real estate agents. The
petitioner, through the same advocate filed a
suit in O.S No.101/2021 on the file of II Addl.
Senior Civil Judge and JMFC Dharwad, seeking
the relief of Declaration and Injunction.
3.13. It is contended that the petitioner's advocate
has issued paper publication Kannada daily
newspaper. The respondents, colluding with the
Advocate engaged by with the advocate
engaged by the petitioner, in order to defeat
petitioner's interest in the property and by
playing fraud on the petitioner and court,
without the knowledge of the petitioner, have
filed an application seeking discharge of
General Power of Attorney, knowing fully well
that the petitioner is having 3 Irrevocable
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General Power of Attorney and One Special
Power of Attorney coupled with the interest in
the property and got referred the matter to the
Lok Adalath and filed a Compromise Petition
settling the matter for Rs.50 lakhs for the
property worth 3.5 Crores. The Lok Adalath
decreed the suit.
3.14. Hence, being aggrieved by the order of decree,
the present petition is filed invoking the writ
jurisdiction. The petitioner also produced the
documents inter se between the petitioner and
respondent No.1 i.e., Sale Agreement, Power of
Attorneys executed on different dates, MOU as
Annexure-A1 to AY1 and AY2 and also produced
the decree as Annexure-V.
4. Learned counsel appearing for the petitioner
contended that;
4.1. The Power of Attorney, Special Power of
Attorney, Sale Agreements and MOUs executed
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by respondent No.1 in favour of the petitioner
clearly establishes that the interest is created in
the property bearing Survey No.217 and 218
and by playing fraud behind the back of the
petitioner, the respondents have obtained the
impugned compromise decree.
4.2. The counsel also contended that, an application
was filed in I.A.No.7 for discharge. Complaint
is also given against the advocate who
represented on behalf of the petitioner and only
with an intention to cheat the petitioner,
respondent No.1 obtained the decree.
4.3. It is also contended that respondents No.1 to 6
have filed a compromise petition under Order
XXIII Rule 3 of CPC on 06.06.2022 and
respondent No.1 accepted Rs.14,00,000/- cash
in open court and then the matter was referred
to Megha Lok Adalath and compromise was
entered before the Lok Adalath. Though the
matter was settled out of the Court, but in
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Megha Lok Adalath, compromise decree was
prolonged.
4.4. It is contended that, respondent No.1 induced
the petitioner for making investment in other
properties for the development and also clear
the obstructions in those properties and the
petitioner believing the words of the first
respondent, invested the money belonging to
his father and family members and he
developed the properties and played fraud on
the court as well deceived the petitioner and
the decree obtained is a fraudulent one and
made with an intention to deceive the petitioner
from the property right.
4.5. It is also contended that, the petitioner has
paid Rs.20,00,000/- to respondent No.5 and
Rs.25,00,000/- to respondent No.1 for settling
their claims apart from huge investment made
by the petitioner.
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4.6. It is also vehemently contended that, no notice
of discharge was given to the petitioner and
fraud is played not only on the petitioner, but
also on the court.
4.7. It is also contended that the property was sold
to the tune of Rs.9.50 crores and in the
statement of objections admitted regarding the
transaction and hence this Court has to
exercise the writ jurisdiction.
4.8. 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
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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.
4.9. 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
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the parties, which is taken away through the
process of Lok Adalath.
4.10. 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
exercising the writ jurisdiction this Court
quashed the same and guidelines are also
issued regarding how to compromise the matter
before the Lok Adalath.
4.11. 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
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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.
5. Per contra, learned counsel appearing for the
respondents in his arguments would vehemently
contend that;
5.1. The sale deeds are executed on 28.08.2003 in
respect of Survey No.217 measuring 10 acres
39 guntas and Survey No.218 measuring 8
acres 28 guntas and Annexures R1 and R2
establishes the sale deeds are executed and
respondent No.1 had purchased the same
through the Power of Attorney holder, that is
only half portion and not entire extent. The
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documents at Annexures R3 and R4 establishes
that respondents No.2 and 3 have purchased
remaining half portion of the property.
5.2. The counsel also contended that, Annexures R5
and R6 are khata extracts and the Special
Power of Attorney at Annexure-M executed in
favour of the petitioner is not coupled with
interest. The properties bearing Survey
No.217/1 and 218/1 belongs to respondent
No.1 and Power of Attorney and MOUs are not
in respect of the disputed properties and the
same is in respect of properties bearing Survey
No.217/2 and 218/2. Respondent No.1 sold the
property in terms of Annexure J3 and R7 sold
the property in terms of Annexure J4.
5.3. The counsel also vehemently contend that, this
petitioner is an attesting witness to the said
sale deeds. Annexure-M - Special Power of
Attorney, relied upon by the petitioner is only
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to prosecute the case and not for dealing with
the property. The counsel also would
vehemently contend that, Section 207 of the
Contract Act applies and discharge application
was also filed and the same was only a mere
formality since respondent No.1 represented
earlier through this petitioner in terms of
Special Power of Attorney and the same is not
coupled with interest and Section 202 of the
Contract Act not applies.
5.4. The counsel also vehemently contended that,
the discharge order was passed on 24.01.2021
and the matter was not immediately
compromised as contended and the
compromise was entered on 06.06.2022 and
the same is not a fraud.
5.5. The counsel also would submit that, respondent
No.1 filed the suit through the Power of
Attorney holder and respondents No.2 and 3
are the defendants, and this petitioner is not
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having any locus to prosecute only in respect of
survey No.217/1 and 218/1 and no records are
produced with regard to the property in Survey
No.217/1 and 218/1 and there is no sale
agreement executed by respondents No.1 and
MOUs also in respect of Survey No.217/1 and
218/1.
5.6. The counsel also would vehemently contend
that, the writ jurisdiction may be invoked only
for limited grounds. The counsel would
vehemently contend that, in Bhargavi
Constructions's case (supra), they are the
parties to the suit and non-party cannot file the
writ petition.
5.7. The counsel 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) and brought to the
notice of this Court paragraph No.18 of the said
judgment, wherein this Court held that, if not a
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party to compromise decree, he can only file a
separate suit.
5.8. The counsel also vehemently contended that,
the fraud cannot be decided in this writ
petition. The counsel also would submit that,
the order of discharge passed on I.A.No.7 was
not challenged. The compromise was entered
in the year 2022 and writ petition is filed in the
year 2024 and there is laches on the part of the
petitioner.
5.9. The counsel would also contend that,
Annexures R22 and R23 clearly disclose that
the property is converted and technical
approval is also obtained and layout is formed
and sold 80% of plots and hence this Court
cannot set aside the decree.
6. In reply to the arguments, counsel for the petitioner
would vehemently contend that, the bifurcation was
made only after the death and not cancelled and the
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delay in filing the writ petition is due to medical
reasons for which records are also produced. The
documents disclose investment and sale deed
attested only when the sale deed was executed by
the owners.
7. The counsel appearing for the petitioner also brought
to the notice of this Court the re-joinder filed against
the statement of objections filed by respondent No.7.
The counsel also brought to the notice of this Court
the photographs which are produced along with the
rejoinder for having developed the property by
making investment by the petitioner at AE, AE1 to
AE6 and also brought to the notice of this Court the
discharge summary at Annexure-AF.
8. Having heard the petitioner's counsel and also the
counsel appearing for the respondents and also
considering the grounds urged in the petition as well
as the statement of objections and rejoinder, this
Court has to look into the material on record to
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determine whether this Court can set aside the
decree by exercising the writ jurisdiction under
Articles 226 and 227 of the Constitution of India.
9. Admittedly, the suit is filed by the petitioner as a
Power of Attorney holder on behalf of respondent
No.1. It is also not in dispute that a compromise was
entered into between the original plaintiff along with
the defendants. The records also disclose that, an
amount of Rs.14,00,000/- was paid before the Court
and thereafter the matter was referred to Lok
Adalath, wherein a compromise was recorded and
consequent upon the compromise entered into
between the parties, decree is passed in terms of
Annexure-V, which is sought to be set aside. The
records which have been produced before this Court
are the sale agreements, acknowledgement for
having received money at Annexures A and A1,
copies of sale agreement at Annexure-B, General
Power of Attorney at Annexure-C, Partnership Deed
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at Annexure-E and copies of MOU and loan
agreement at Annexures F and Q. The petitioner
also relied upon accounts statement of his father for
having paid money to the petitioner in terms of
Annexure-H and the sale deeds at Annexures J, J1,
J2, J3 and J4 and Irrevocable Power of Attorney
executed on 27.07.2019 at Annexure-K, copies of the
sale agreements at Annexure-L and L1, copy of the
Special Power of Attorney dated 25.01.2021 at
Annexure-M and on the basis of the same, suit was
filed. No doubt these documents would be with
regard to the relationship between the petitioner and
respondent No.1.
10. It is also important to note that, an application was
filed as per I.A.No.7 for discharge of Power of
Attorney before the Trial Court. The main contention
of the petitioner is that no notice was given to him
before discharging the Power of Attorney. Having
perused Annexure-M - Special Power of Attorney, the
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power is given to appoint advocates and to file a suit
for declaration and injunction in respect of the
schedule property and appear before the different
Courts at Dharwad and High Court or any Court, Lok
Adalath and to obtain deeds i.e., in respect of 5 acres
21 guntas in respect of R.S.No.217/1 to the extent of
5 acres 21 guntas and item No.20 in respect of 4
acres 15 guntas of R.S.No.218/1. The contention of
respondents is that, that is only a Special Power of
Attorney to do particular acts and not transferred any
interest in respect of the suit schedule property.
However, the petitioner has relied upon other
documents of sale agreement and Power of Attorney.
It is also not in dispute that the compromise was
entered inter se between the original plaintiff and
defendants. The main contention of the petitioner
before this Court is that, fraud has been played on
the court as well as the petitioner in spite of the
petitioner has invested money and discharged him
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behind the back of the petitioner, without notice and
compromised.
11. The counsel appearing for the petitioner relied upon
several orders passed by this Court in exercise of
powers under Sections 226 of the Constitution of
India. The counsel particularly relied upon the
judgment of the Hon'ble Apex Court in Jalour
Singh's case (supra). Having perused this
judgment, in paragraph No.12 it is held that, where
an award is made by Lok Adalath in terms of the
settlement arrived at between the parties, (which is
duly signed by parties and annexed to the award of
the Lok Adalath), it becomes final and binding on the
parties to the settlement and becomes executable as
if it is a decree of a civil court, and no appeal lies
against it to any court. If any party wants to
challenge such an award based on settlement, it can
be done only by filing a petition under Article
226 and 227 of the Constitution, that too on very
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limited grounds. But where no compromise or
settlement is signed by the parties and the order of
the Lok Adalath does not refer to any settlement, but
directs the respondent to either make payment if it
agrees to the order, or approach the High Court for
disposal of appeal on merits, if it does not agree, is
not an award of the Lok Adalath. The question of
challenging such an order in a petition under Article
227 does not arise. In such a situation, the High
Court ought to have heard and disposed of the
appeal on merits.
12. In the case on hand, no doubt the petitioner
represented the original plaintiff before the Court as
a Power of Attorney holder and an application was
filed to discharge the Power of Attorney holder.
Admittedly, the said order was not challenged in this
writ petition and only challenge is made regarding
compromise entered into between the parties. The
contention of the petitioner is that, in order to
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deceive the right of the petitioner, a compromise was
entered and fraud is played against the petitioner as
well as against the Court. Now this Court has to
examine whether the same can be questioned before
this Court with regard to fraud in a writ petition.
13. No doubt in the judgment of the Hon'ble Apex Court
reported in Jalour Singh's case (supra), it is held
that it may be done only by filing a petition under
Article 226 of the Constitution of India, that too on
very limited grounds. Now the question before this
Court is whether the fraud as alleged in the petition
can be decided in a writ jurisdiction and the same is
a limited ground.
14. 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
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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
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
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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.
15. This Court also would like to rely upon the judgment
of the Hon'ble Apex Court in the case of R. Rajanna
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
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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.
16. This Court also would like to rely upon the judgment
of this Court in the case of Kasturevva Hemappa
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.
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17. 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
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
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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).
18. 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,
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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.
19. 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
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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
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.
20. 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
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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
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 facts 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
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Court as held throughout from 2006 onwards till
date, as I have discussed in detail above.
21. It is also important to note that the main grievance
of the petitioner that he was the Power of Attorney
holder and he himself has filed the suit on behalf of
respondent No.1/plaintiff before the Trial Court and
also there is no dispute in terms of Annexure-M the
Special Power of Attorney and the said Power of
Attorney is given for the specific purpose on behalf of
the respondent No.1, who is the plaintiff before the
Trial Court. As rightly contended by the counsel for
the respondents, the same is not coupled with any
interest and in view of the counsel for the petitioner
relying upon several documents of sale agreement
and Irrevocable Power of Attorney, both registered
and unregistered and that he had invested money
and improved the property, the said fact also cannot
be decided in a writ petition filed under Article 226 of
the Constitution of India, and he has got the option
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to challenge the very discharge order passed by the
Trial Court and the same has not been challenged
and only sought for an order to set aside the decree
passed in Lok Adalath. When the complicated issues
and disputed issues involved, this Court cannot
exercise Article 226 of the Constitution of India and
the same is only for limited grounds. The case of the
petitioner is that, he had entered into MOU sale
agreement and also Power of Attorney and therefore
those documents interest has been transferred in his
favour. When such being the case, he has got option
either to approach the very same Court, since his
allegation is that, fraud is played on the Court as well
as the petitioner or even he can pursue his remedy
based on the document of sale agreement, Power of
Attorney, since he claims interest on those
documents, inclusive of the MOU.
22. All these disputed facts have to be considered by the
very same court in which the decree has been passed
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or the petitioner has to seek for appropriate remedy
before the Trial Court in view of the contentions
raised in this writ petition. Even the document of
General Power of Attorney, Sale Agreement and MOU
were not there before the Trial Court while
considering the matter and other documents which
have been annexed along with this petition have
been placed before this Court only seeking the relief
under Article 226 of the Constitution of India. Hence
I do not find any merit in this writ petition to set
aside the decree passed in Megha Lok Adalath in
terms of Annexure-V. However, the other prayer is
also sought to restore the original suit. For seeking
the relief of restoring the original suit, the petitioner
can file necessary application before the very same
Court and urge the grounds to set aside the decree,
if according to him, the same was obtained by fraud.
23. In view of the discussion made above, I pass the
following:
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ORDER
i. Writ petition is dismissed. ii. However, liberty is given to the petitioner to approach the very same Court by filing necessary application in view of the principles laid down in the judgments referred supra and also given liberty to seek appropriate relief before the appropriate forum as he contended that he has got the interest over the property, in terms of the documents which are relied upon before this Court.
Sd/-
(H.P. SANDESH) JUDGE gab ct-mck List No.: 1 Sl No.: 84