Karnataka High Court
Smt Gowramma vs Sri B V Ramachandrappa on 23 January, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRP No. 564 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 564 OF 2013 (IO)
BETWEEN:
1. SMT GOWRAMMA,
W/O B.V.SHAMANNA,
AGED ABOUT 55 YEARS,
R/AT AREBINNAMANGALA VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK - 562110.
...PETITIONER
(BY SRI. T SHESHAGIRI RAO, ADVOCATE)
AND:
1. SRI B V RAMACHANDRAPPA,
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 65 YEARS,
2. SRI.B.V.UTTANALLAPPA,
Digitally signed by
R HEMALATHA S/O LATE VENKATASWAMAPPA,
Location: HIGH
COURT OF
KARNATAKA
AGED ABOUT 63 YEARS,
THE RESPONDENT NOS.1 AND 2 ARE
RESIDING AT AREBINNAMAN GALA VILLAGE,
JALA HOBLI, BANGALORE NORTH TALUK-562110.
3. SRI.B.V.SHAMANNA,
S/O LATE VENKATASWAMAPPA,
AGED ABOUT 69 YEARS,
R/AT AREBINNAMANGALA VILLAGE,
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CRP No. 564 of 2013
JALA HOBLI, BANGALORE NORTH TALUK - 562110.
4. SMT.KYATHAMMA,
SINCE DEAD BY HIS LRS
4(a) SRI GUNDAPPA,
S/O LATE MARAPPA,
AGED ABOUT 80 YEARS,
R/AT NAGAMANGALA VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
4(b) SMT.NAGARATHNAMMA,
W/O GOVINDAPPA,
AGED ABOUT 50 YEARS,
R/AT HITHARAHALLI VILLAGE,
CHANNARAYAPATTANA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
4(c) SMT.RADAMMA,
W/O LATE ASHWATHAPPA,
AGED ABOUT 48 YEARS,
R/AT GOLLAHALLI VILLAGE,
SULEBELE HOBLI, HOSKOTE TALUK,
BANGALORE RURAL DISTRICT.
4(d) SMT.RUKMINIYAMMA,
W/O NANJUNDAPPA,
AGED ABOUT 45 YEARS,
R/AT MARALAKUNTE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK.
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CRP No. 564 of 2013
4(e) SRI RAJASHEKAR,
S/O GUNDAPPA,
AGED ABOUT 43 YEARS,
R/AT NAGAMANGALA VILLAGE,
KUNDANA HOBLI,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
5. SMT.BYRAMMA,
W/O MUNIKRISHNAPPA,
AGED ABOUT 67 YEARS,
R/AT DINNURU VILLAGE,
CHANNARAYAPATNA HOBLI,
DEVANAHALLI TALUK - 562110.
6. SMT.SHANTHAMMA,
W/O GOVINDAPPA,
AGED ABOUT 61 YEARS,
R/AT DODDASANNE VILLAGE,
KASABA HOBLI,
DEVANAHALLI TALUK - 562110.
7. THE SPECIAL LAND ACQUISITION OFFICER,
KARNATAKA, INDUSTRIAL DEVELOPMENT BOARD,
OPP. TO RESERVE BANK,
NRUPATHUNGA ROAD, K.R.CIRCLE,
BANGALORE - 560 001.
...RESPONDENTS
(BY SRI. MAHESH KUMAR A & VEGA LAW ASSTS. FOR C/R1
AND R2 IN CP NO.379/2013, SRI K SHIVASHANKER AND
MAHESH KUMAR A ADVOCATES FOR R1 & R2, R3, R4(A),
R4(B), R4(D) R4(E) R5, R6, & R4(C) SERVED SRI ASHOK N
NAYAK, ADV. FOR R7, V/O/D 04.07.2022 NOTICE TO R4(C) IS
H/S)
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CRP No. 564 of 2013
THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST
THE ORDER DATED 9.12.2013 PASSED ON IA NO.VI IN
O.S.NO.340/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., DEVANAHALLI, DISMISSING THE IA NO.6 FILED UNDER
ORDER 7 RULE 11(d) OF CPC.,
THIS PETITION COMING ON FOR FURTHER DICTATION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Respondent Nos.1 and 2 have filed a suit for partition and separate possession of their legitimate 1/3rd share in the suit schedule property. Defendant No.2 filed an application under Order VII Rule 11 d of CPC stating that the suit is barred, since the subject property was omitted in the earlier suit for partition between the parties, and also having alleged that the compromise decree was obtained fraudulently, the suit is hit under Order XXIII Rule 3A of CPC. The Trial Court after considering the material on record and also submissions of learned counsel for the parties rejected the application stating that the contention of defendant No.2 can be considered only after full fledged trial, against which, the present petition is filed.
2. Learned counsel for the petitioner would make two fold submissions:
a) Firstly, the plaintiffs were the defendants No.2 and 3 in the earlier suit for partition, and the present suit filed for partition in respect of the schedule property which -5- CRP No. 564 of 2013 was omitted in the earlier suit is hit by Order II Rule 2 of CPC, since the present suit is filed without seeking leave of the Court in the earlier suit.
b) Secondly, the plaintiffs having alleged that, the compromise decree in the earlier suit was obtained fraudulently, the present suit is hit by Order XXIII Rule 3A of CPC.
3. The learned counsel for the respondents - plaintiffs would submit as follows:
a) The cause of action to file the instant suit arose in the year 2013 when the suit schedule property was acquired by the KIADB, and the defendants sought to withdraw the compensation amount.
b) The defendants herein deliberately omitted to include the suit schedule properties in the earlier suit filed for partition, and the present suit is filed on a different cause of action. Hence, the suit is not hit by Order II Rule 2 CPC.
c) Order XXIII Rule 3A CPC is not applicable, since it is not alleged in the plaint that, the earlier compromise decree was obtained by fraud. The plaint averment does not satisfy the requirements to invoke Order VII Rule 11 CPC to reject the plaint.-6- CRP No. 564 of 2013
d) In support, reliance is placed on the following decisions:
1. Bapusaheb Chimasaheb Naik-Nimbalkar (Dead Through LRs Vs. Mahesh Vijaysinha Rajebhosale AIR 2017 SUPREME COURT 2491.
2. Neelavva Madivalappa Kamati Vs. Drakshayani Veeranna Kuratti and others (2016) 4 KCCR 3814.
3. Triloki Nath Singh Vs. Anirudh Singh(D) THR. LRS & ORS. decided in Civil Appeal No(s).3961 of 2010 disposed of on 06th May, 2020.
4. Considered the submissions of the learned counsel for the parties.
5. Defendants 1 and 4 had earlier instituted suits for partition in O.S No.345/2009 and O.S No.398/2009. In the said suits, the present plaintiffs were defendants 2 and 3.
Parties to the said suits entered into a compromise, and in terms of the settlement arrived at between the parties, the final decree was drawn, and the same has attained finality. Thereafter, the plaintiffs have filed a suit for partition, and possession of their legitimate share in the suit schedule properties, which were not the subject matter in the earlier suits stating that, the suit property is the joint property standing in the name of the 2nd defendant, and the said fact came to their knowledge only in the year 2013 when the -7- CRP No. 564 of 2013 defendants had tried to receive the compensation of the schedule property, which had been acquired by the KIADB.
6. Order II Rule (2) CPC specifies that suit to include the whole claim and Sub-rule (3) specifies that a person entitled to claim relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
7. In the instant case, defendants were plaintiffs 2 and 3 in the earlier suits, and in the suits for partition, defendants had every right to file an application to include all the properties, which were not included in the suit for partition. The cause of action for partitioning of the present suit schedule property accrued to the plaintiffs in the earlier suits, and the plaintiffs having not filed an application to include the suit schedule properties in the earlier suits nor having taken the leave of the Court to file a fresh suit, the plaintiffs could not have maintained a fresh suit for partition as specified under Order II Rule (2) CPC.
8. The decisions relied upon by the plaintiffs are not applicable to the facts of the case. In BAPUSAHEB CHIMASAHEB NAIK-NIMBALKAR's case (supra), the Hon'ble Supreme Court held that the suit of the year 1963 was based on a different cause of action on the basis of the deed of 1957, -8- CRP No. 564 of 2013 whereas the instant case, the cause of action is different, and it is on the basis of death of absolute owner, Shakuntala Bai in the year 1962, and Anandi Bai became owner and the plaintiff had in turn inherited by Anandi Bai.
9. In the present case, the plaint averment discloses that they came to know that, the suit schedule property standing in the name of the defendant No.2 was the joint family property only when the defendants tried to withdraw the compensation in respect of the suit properties, which have been acquired by the KIADB. It is not the case of the plaintiffs that, they acquired the right over the suit property upon happening of an event after the compromise decree was drawn in the earlier suits. The plaintiffs had a cause of action to seek for partition of the suit property in the earlier suits having contended that, it is the joint family property. The cause of action in the earlier suits, and the present suit being one and the same, the present suit is hit by Order II Rule 2 of CPC.
10. Order XXIII Rule 3A CPC specifies that, no suit shall lie to set aside a decree on the ground that, the compromise on which the decree is based is not lawful. In the plaint, it is averred that, the 1st defendant having knowledge that the suit schedule property belongs to the joint family only with an intention to cheat and grab the valuable suit property has deliberately not included the said property in the earlier suits for partition. In other words, the plaintiffs have contended -9- CRP No. 564 of 2013 that, the compromise decree was obtained fraudulently without including the suit property.
11. The Hon'ble Supreme Court in the case of Triloki Nath Singh (supra) with reference to the scope and intent of order XXIII Rule 3A referred to the decision in the case of R Rajanna -vs- S R Venkataswamy and ors. [(2014) 15 SCC 471] wherein it is held as follows:
"11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3-A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct t/he parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3-A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having thus got the
- 10 -CRP No. 564 of 2013
plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein ) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court.
12. Referring to the provisions contained in Order XXIII Rule 3A of CPC and also the aforesaid decision, the Hon'ble Supreme Court held that the legislature has brought into force Rule 3A to Order XXIII to create a bar to institute the suit to set aside a decree on the ground that the compromise on which decree based was not lawful. It is further held that the purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the Court of competent jurisdiction one for all.
13. The plaintiffs having averred that, the compromise was not lawful could not have maintained a fresh suit, since the validity of the compromise has to be determined by the Court, which had passed the compromise decree.
14. In view of the preceding analysis, the suit is hit by Order II Rule 2 and Order XXIII Rule 3A of CPC. Accordingly, I pass the following:
ORDER
(i) Revision petition is allowed.
(ii) The impugned order dated 09.12.2013 passed by the Senior Civil Judge & JMFC, Devanahalli on I.A.No.6 in O.S.340/2013 is hereby set-aside and consequently, I.A.No.6
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filed under Order VII Rule 11(d) CPC is hereby allowed and the plaint in O.S.340/2013 stands rejected.
(iii) It is needless to state that plaintiffs/respondents 1 and 2 are reserved with liberty to challenge the validity of the compromise decree drawn in the earlier suits in accordance with law.
All contentions are left open.
Sd/-
JUDGE BRN List No.: 1 Sl No.: 30