Karnataka High Court
Sri Arasappa vs Sri Mahishappa on 26 November, 2021
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.30343/2019 (GM-CPC)
BETWEEN :
SRI ARASAPPA
S/O LATE HUSSAINAPPA
AGED ABOUT 80 YEARS
R/AT MANAGANAHALLI VILLAGE,
YASHVANTHAPURA HOBLI,
BANGALORE NORTH TALUK-560 060
... PETITIONER
(BY SRI. BALAGANGADHAR G S, ADVOCATE)
AND :
1. SRI MAHISHAPPA
S/O LATE HUSSAINAPPA,
AGED ABOUT 85 YEARS
2. SRI.PUTTARAMAIAH
S/O MAHISAPPA,
AGED ABOUT 60 YEARS
3. SRI.VENKATESH
S/O MAHISAPPA,
AGED ABOUT 58 YEARS
2
4. SRI.NAGARAJ
S/O MAHISAPPA,
AGED ABOUT 55 YEARS
5. SRI.KRISHNAMURTHY
S/O MAHISAPPA,
AGED ABOUT 45 YEARS
6. SRI.SEETHAPPA
S/O MAHISAPPA,
AGED ABOUT 42 YEARS
RESPONDENT NOS.1 TO 6 ARE
R/AT MANGANAHJALLI VILLAGE,
YASHVANTHAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-560 060.
7. SMT.JAYAMMA
W/O LATE VENKATARAMANAPPA,
AGED ABOUT 40 YEARS
8. SMT.NAGARATHNAMMA
D/O LATE VENKATARAMANAPPA,
AGED ABOUT 30 YEARS
9. SRI.DEVARAJ
S/O LATE VENKATARAMANAPPA,
AGED ABOUT 28 YEARS
10. SMT.NEELAMMA
D/O LATE VENKATARAMANAPPA,
AGED ABOUT 22 YEARS
11. SMT.MARAKKA
W/O LATE HUSSAINAPPA,
AGED ABOUT 90 YEARS
ALL ARE R/AT
MANGANAHALLI VILLAGE,
3
YASHVANTHAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE-560 060.
... RESPONDENTS
(BY SRI. C.RAJANNA, ADVOCATE FOR R2 AND R5;
SRI. KARTHIK K.C., ADVOCATE FOR R3 AND R6;
NOTICE TO R1, R4, R7 AND R11 ARE D/W;
NOTICE TO R8 TO R10 SERVED;
STEPS TO BRING LRS OF R4 WAIVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDERS DATED 29.10.2015 WHEREIN THE LEARNED
FIRST ADDL. CIVIL JUDGE, SR.DN., BANGALORE RURAL
DISTRICT, BANGALORE ORDERED NOTICES TO THE
RESPONDENTS AND ALSO THE ORDERS DTD.12.12.2017
WHEREIN THE LEARNED FIRST ADDL. CIVIL JUDGE,
SR.DN., BANGALORE RURAL DISTRICT, BANGALORE
ORDERED FOR ENQUIRY ON THE APPLICATIONS FILED
U/S 5 OF THE LIMITATION ACT AND ORDER 23 RULE 3 OF
CPC IN IA 1/15 PRODUCED AT ANNX-A AS IN RA
NO.197/96 THE SAME IS IMPUGNED, PERVERSE AND
CAPRICIOUS AND LIABLE TO BE SET ASIDE.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
4
ORDER
The petitioner has filed this petition because one of the parties to a concluded suit has filed an application under Order XXIII Rule 3-A read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'the CPC') for reopening of the concluded decree after a lapse of seventeen [17] years. The appellate Court, which has passed the subject decree on the compromise petition, by the impugned order has issued notice on the applications Order XXIII Rule 3-A of CPC for recall of the decree and for condonation of delay, and the civil Court has further directed enquiry on such applications.
2. The parties to the present proceedings are parties to appeal in R.A.No.197/1996 on the file of the I Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, and the impugned orders are dated 5 29.10.2015 and 12.12.2017. The appellate Court by the first order dated 29.10.2015 has issued notice on applications, and by the subsequent order dated 12.12.2017 has directed enquiry on the application for condonation of delay.
3. Sri. G.S.Balagandaghar, the learned counsel for the petitioner, relies upon the following circumstances in support of the petition:
a) a suit for partition in O.S.No.475/1992 was decreed after trial by judgment dated 26.06.1996. The fifth respondent, the present applicant, along with his brothers impugned this judgment and decree dated 26.06.1996 before the appellate Court in R.A.No.197/1996. This appeal was pending for more than two [2] years when the parties filed a compromise petition under Order XXIII Rule 3 of CPC dividing the suit schedule properties by metes and bounds. In this compromise petition, certain immovable properties 6 commensurate with the applicant's share, was also allotted to him and these properties are described in schedule 'E'. The compromise petition was accepted and final decree drawn immediately thereafter;
b) One of the properties allotted to the applicant's branch of the family members is acquired for the purposes of a Nandi Infrastructure Corridor Enterprises (NICE) road. The applicant's father has received some part of the compensation and the remaining is in deposit because of a dispute by a transferee who has commenced suit for specific performance in O.S.No.794/1998. This suit is decreed with costs and the first appeal is pending before this Court;
c) The applicant, notwithstanding these incontrovertible circumstances which show that the compromise has been accepted and acted upon, has 7 filed the present set of applications on flimsy grounds asserting some of the properties partitioned in terms of a compromise decree are not at all available and there is fraud in presenting the compromise petition.
d) The applicant's brother, the third respondent has filed objections contesting the application stating that the application lacks bonafides and the delay is not sufficiently explained. He has also stated that the applicant is trying to resurrect a dispute which has been finally decided after the demise of the father on the ill-advice of certain third parties.
4. Sri. G.S.Balagangadhar relying upon these circumstances, submits that the civil Court could not have even issued notice on the applications without considering the same when the records show that the final decree has been drawn about seventeen [17] years prior to the date of the application. If such applications 8 are entertained routinely, the sanctity of a decree which has prevailed over seventeen [17] years amongst the parties will be seriously impaired.
5. This Court is of the considered view that the merits of the rival claims viz., that non-existing properties have been divided by metes and bounds because of a fraud which was not known for over seventeen [17] years and the defence that the decree has prevailed over seventeen [17] years with different stakeholders having acted upon this decree even with the applicant's family acting upon the same, should be examined and decided finally with a finding on whether these applications are unconscionable but after a complete but expeditious enquiry with opportunity to lead evidence.
6. This Court must also observe that if indeed the circumstances relied upon by 9 Sri. G.S.Balagangadhar are established and they demonstrate that the applications are indeed unconscionable, the appellate Court, which should not only decide the applications expeditiously to ensure that a dispute settled is not opened again to fester, should also impose exemplary cost to make the point that if unconscionable applications are filed, the Courts, which are as it is constrained by heavy burden of work, will deal with those applications with heavy hands.
7. Further, the petitioner perhaps has approached this Court without filing objections to the applications, and in such event, the petitioner, without even an application must have the liberty to file statement of objections. It would be needless to observe that there is no comment on the merits of the rival claims but the rival claims are recorded only to bring forth the anxiety that finally concluded matters must not be reopened on a lark, or for reasons which are 10 unconscionable, or because one is adventurous; and if these factors are established, they must be dealt with heaving hands. For the forgoing, the following:
ORDER a. The petition stands disposed of calling upon the appellate Court to dispose of the fifth respondent's applications, under all circumstances, within a period of three [3] months from the date of receipt of a certified copy of this order. The petitioner shall be at liberty to file objection statement to the applications;
b. The appellate Court shall also decide, while considering the merits of the applications, whether the applications could be considered unconscionable or filed for any of the above mentioned reasons, and if it is of the opinion that they are indeed so, the appellate Court shall 11 impose a cost on the applicant which shall not be less than Rs.5,00,000/- (Rupees Five Lakhs Only).
Sd/-
JUDGE RB