Karnataka High Court
Muthanappa vs Revanna on 18 July, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:25039
CRP No. 262 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.262 OF 2022 (IO)
BETWEEN:
1. MUTHANAPPA
S/O LATE PUTTAIAH
AGED ABOUT 90 YEARS
2. SMT. GANGAMMA
WIFE OF LATE ANJINAPPA
AGED ABOUT 67 YEARS
3. CHIKKA HANUMAIAH
SON OF LATE ANJINAPPA
AGED ABOUT 50 YEARS
Digitally signed
by SHARANYA T 4. HANUMANTHARAJU
Location: HIGH SON OF LATE ANJINAPPA
COURT OF
KARNATAKA AGED ABOUT 35 YEARS
PETITIONER NOS.1 TO 4 ARE
R/AT PUTTAIANAPALYA
TAVAREKERE HOBLI 562132
BENGALURU SOUTH TALUK
5. SMT. ANJINAMMA
D/O LATE ANJINAPPA, W/O SAMPAIAH
AGED ABOUT 52 YEARS
R/AT BYADARAHALLI VILLAGE
NELAMANGLA TALUK 562123
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NC: 2023:KHC:25039
CRP No. 262 of 2022
6. SMT. JAYALAKSHMAMMA
D/O LATE ANJINAPPA
W/OF DEVARAJU
AGED ABOUT 40 YEARS
R/AT PUTTANAPALYA
TAVAREKERE HOBLI 562132
BENGALURU SOUTH TALUK
7. SMT. SHANTHAMMA
D/OF LATE ANJINAPPA
AGED ABOUT 38 YEARS
R/AT MARENAHALLI
VIJAYAANGARA
BANGALORE 560040.
...PETITIONERS
(BY SRI VASANTH KUMAR H T, ADVOCATE)
AND:
1. REVANNA
S/O LATE CHANNAIAH@ CHANNAPPA
AGED ABOUT 60 YEARS
2. KEMPAIAH
S/O LATE CHANNAIAH @ CHANNAPPA
AGED ABOUT 57 YEARS
3. LAKSHAMANA
S/O LATE CHANNAIAH @ CHANNAPPA
AGED ABOUT 55 YEARS
ALL ARE R/AT PUTTAIANAPALYA
TAVAREKERE HOBLI-562132
BENGALURU SOUTH TALUK
...RESPONDENTS
(BY SRI GOPI P M, ADVOCATE FOR
SRI P M SIDDAMALLAPPA, ADVOCATE)
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NC: 2023:KHC:25039
CRP No. 262 of 2022
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 22.04.2022 PASSED ON
I.A.NO.8 IN O.S.NO.113/2020 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, MAGADI AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed challenging the order of rejection of the application filed under Order VII Rule 11(d) of CPC in O.S.No.113/2020.
2. This matter is listed for admission. Heard the learned counsel appearing for the respective parties.
3. The main contention of the defendants in the application before the Trial Court is that the suit is barred by law, there is no cause of action, the suit is bad for non- joinder of necessary parties and without impleading all the properties in the suit, they cannot seek the relief of partition. In support of the application, an affidavit is sworn to by defendant No.5 reiterating the fact that already a suit was filed in O.S.No.24/2013 and parties -4- NC: 2023:KHC:25039 CRP No. 262 of 2022 have appeared and filed compromise petition and compromise decree also passed. It is also contended that in view of the said compromise decree, all the revenue entries were changed in the name of the parties and the parties have acted upon and now, they cannot file one more suit seeking the relief of declaration to declare that the compromise entered between the parties is not binding on them on the ground that they are not the parties to the suit when the mother of the plaintiffs is party to the said compromise and same cannot be agitated and if any grievance is having, they can approach the very same Court where compromise was entered and not filing a separate suit.
4. The said application is resisted by the counsel for the plaintiffs before the Trial Court by filing statement of objections contending that they are not the parties to the compromise suit and also property is granted in favour of their father hence, the same is exclusive property of the father, thus, the mother can't give any consent to the said -5- NC: 2023:KHC:25039 CRP No. 262 of 2022 compromise and hence, the said disputed fact has to be considered in a suit and not in an application filed under, Order VII Rule 11 of CPC.
5. The Trial Court having considered the grounds urged in the application and also in the statement of objections, in paragraphs 7 taken note of the prayer sought in the suit and also in paragraph 8 held that the plaintiffs asserted that the suit schedule properties are the self-acquired properties of their father and after death of their father, they and their mother inherited same and their mother had no exclusive or specific right over the same and hence, the compromise decree does not bind them and is liable to be declared as null and void and cause of action for this suit arose during December 2019 when defendant Nos.2 to 8 were negotiating with others for sale of the suit schedule properties and hence, the relief is sought for declaration. The contention that the suit is not maintainable for partial partition and non- joinder of necessary parties and the Trial Court having -6- NC: 2023:KHC:25039 CRP No. 262 of 2022 taken note of the said fact into consideration comes to the conclusion that specifically explained with regard to cause of action for the suit and questions has to be decided only in the trial and issue of res-judicata would be mixed question of law and fact which is not a ground to reject the plaint under Order VII Rule 11 of CPC. Hence, the present revision petition is filed.
6. The main contention of the petitioners that the Trial Court committed an error in rejecting the application whereas there was already a compromise decree and compromise decree cannot be challenged in a separate suit but they can approach the very same Court with regard to the said compromise decree. The counsel also would vehemently contend that the mother of the plaintiffs is also a party to the said compromise and the mother had not challenged the same and the respondents are admittedly the sons of defendant No.1 and they cannot question the same in an independent suit. -7-
NC: 2023:KHC:25039 CRP No. 262 of 2022
7. The counsel in support of his argument relied upon the judgment reported in AIR 2022 SC 1031 in the case of M/S SREE SURYA DEVELOPERS AND PROMOTERS vs N SAILESH PRASAD AND OTHERS wherein the Apex Court held that when an order has been passed under Order XXIII Rule 3 of CPC while compromising the suit and the same is barred by law. The plaintiff has filed the suit challenging the compromise decree and the Trial Court rejected the plaint under Order VII Rule 11(d) of CPC on the ground that the said suit would not be maintainable in view of specific bar under Order XXIII Rule 3(a) of CPC and against said order, an appeal filed before the High Court at the stage of deciding the application filed under Order VII Rule 11, only thing which was required to be considered by High Court was whether suit would be maintainable or not and that suit challenging compromise decree would be maintainable or not in view of Order XXIII Rule 3(a) of CPC and High Court did not deal with said crucial aspect, rather High Court set aside the order of the Trial Court rejecting plaint by -8- NC: 2023:KHC:25039 CRP No. 262 of 2022 entering into merits of validity of compromise decree on ground that same was hit by Order XXXII Rule 7 and order of the High Court erroneous and liable to be set aside and order of the Trial Court restored. The counsel referring this judgment vehemently contend that the very judgment of the Apex Court is aptly applicable to the case on hand.
8. The counsel also relies upon the judgment of the High Court of Punjab and Haryana reported in LAWS(P&H)-2008-3-51 in the case of MOORTI vs KAUR SINGH wherein also the Court held that the suit is not maintainable questioning the compromise decree in view of the specific bar contained under Order XXIII Rule 3(a) of CPC.
9. Per contra, the learned counsel appearing for the respondents would vehemently contend that the Trial Court has given the reason while passing an order that the questions involved between the parties has to be decided only after the trial. The counsel also vehemently contend that the plaintiffs are not parties to the compromise and -9- NC: 2023:KHC:25039 CRP No. 262 of 2022 then they cannot approach the very same Court and the counsel would vehemently contend that the compromise decree is a collusive decree and the same is obtained within a span of 1½ months from filing of the suit and the mother was not having any exclusive right to compromise the suit.
10. The counsel in support of his arguments, relied upon the order of this Court reported in CRP No.397/2019 dated 27.06.2023 and brought to notice of this Court that the Court has to look into the averments of the plaint and this Court taken note of the creation of documents when specific pleading was made in the plaint in this regard.
11. Having heard the learned counsel appearing for the parties and also on perusal of the material on record as well as the grounds urged in the revision petition, the point that would arise for the consideration of this Court that:
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NC: 2023:KHC:25039 CRP No. 262 of 2022 Whether an independent suit can be filed when there was a compromise and whether there is a bar under Order XXIII Rule 3(a) of CPC to file a separate suit?
12. Having heard the learned counsel appearing for the parties and also on perusal of the material on record it discloses that the contention of the defendants before the Trial Court by filing an application under Order VII Rule 11 of CPC is that there is no cause of action for the suit and the same is barred by law and ought to have approached the very same Court wherein compromise was entered between the parties instead of filing the separate suit. It is the contention of the revision petitioners that originally, the property belongs to one Puttaiah and the same was purchased in the year 1958 and also it is the contention that grant was made in favour of the first son of Puttaiah and after the death of Puttaiah, the property was transferred to his wife and other sons of Puttaiah that is Muthanjappa and Anjanappa and the said Muthanjappa and Anjanappa have filed the suit in O.S.No.24/2013 and
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NC: 2023:KHC:25039 CRP No. 262 of 2022 in the said suit, there was a compromise and compromise decree was drawn. The counsel also submits that FDP is also filed and final decree also passed and in support of the said contention, he has produced the document to show that final decree is also drawn.
13. The question before the Court is whether a separate suit is maintainable before the Court. In view of the judgment of the Apex Court referred supra, there cannot be a separate independent suit by questioning the judgment and decree drawn based on the compromise entered between the parties and they can approach the very same Court if any fraud or misrepresentation is alleged while obtaining the order of compromise decree. Admittedly, the mother of the plaintiff also a party to the compromise decree. It is the contention of the counsel for the respondents that compromise was entered within a span of 1½ months from filing of the suit and also the dispute in respect of the very same property. The question that whether grant was a independent grant or
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NC: 2023:KHC:25039 CRP No. 262 of 2022 not has to be decided in a separate suit when the mother was represented and entered into a compromise with the uncles of the plaintiffs and if any fraud or misrepresentation in obtaining the compromise decree, they can approach the very same Court questioning the same and they cannot file a separate suit since there is a bar under Order XXIII Rule 3(a) of CPC. Whatever allegations are made with regard to compromise decree which was entered between the mother and uncles of the plaintiffs, the same has to be agitated in the said suit and hence, the same is barred by law under Order XXIII Rule 3(a) of CPC and they have to approach the very same Court to seek for an appropriate order. The Trial Court failed to take note the said contention since already there was a compromise decree in O.S.No.24/2013 and same cannot be challenged in a separate suit. Hence, I do not find any force in the contention of the respondents' counsel. In the judgment relied upon by the counsel for the respondents in CRP No.397/2019 referred supra, the facts are different wherein the specific allegation was
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NC: 2023:KHC:25039 CRP No. 262 of 2022 made in the plaint with regard to creation of documents but in the case on hand, already there was a compromise between the mother and uncles of the plaintiffs and the same has to be questioned in the very same suit in which compromise was entered between the parties. Hence, there is a force in the contention of the petitioners' counsel that there is a bar under Order XXIII Rule 3(a) of CPC to challenge the compromise decree.
14. In view of the discussions made above, I pass the following:
ORDER The revision petition is allowed and consequently, the application filed under Order VII Rule 11(d) of CPC is also allowed and plaint is rejected and the plaintiffs are given liberty to approach the very same Court where compromise decree was passed in a suit filed in O.S.No.24/2013.
Sd/-
JUDGE SN