Karnataka High Court
Sushila W/O Shivashankarappa Hongal vs Vijaykumar on 6 July, 2020
Author: N.S.Sanjay Gowda
Bench: N.S. Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 06TH DAY OF JULY 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
CRP NO.100105/2016
BETWEEN
1. SMT. SUSHILA
W/O SHIVASHANKARAPPA HONGAL
AGE: 53 YEARS, OCC: HOUSEWIFE,
R/O: DANESHWARI NAGAR,
2ND STAGE, VIDYA NAGAR,
HUBBALLI, DHARWAD.
2. SMT. KAMALA
W/O ASHOK NARTI
AGE: 49 YEARS, OCC: HOUSEWIFE,
R/O: BASAVESHWAR PARK,
SULLAD ROAD, BENGERI EXTENSION,
HUBBALLI, DHARWAD.
3. SMT. RENUKA
W/O PRAKASH SHIRAGAMBI
AGE: 45 YEARS,
OCC: HOUSEWIFE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
4. SMT. SURVARNA @ ANITA
W/O: YALLAPPA ANGADI,
AGE: 41 YEARS,
OCC: HOUSEWIFE,
R/O: SHIDDALINGESHWAR COLONY,
VIKAS NAGAR, HUBBALLI,
DHARWAD.
2
5. SHIVANAGOUDA
S/O BASANAGOUDA PATIL
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
6. RAJENDRAGOUDA
S/O BASANAGOUDA PATIL
AGE: 39 YEARS,
OCC: AGRICULTURE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
7. SMT. DEEPA
W/O ANANDAGOUDA PATIL
AGE: 27 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
8. KUMAR ADITYAGOUDA
S/O ANANDAGOUDA PATIL
AGE: 11 YEARS, OCC: STUDENT,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
REP. BY HIS GUARDIAN NATURAL
MOTHER & NEXT FRIEND
SMT. DEEPA W/O ANANDAGOUDA PATIL
AGE: 27 YEARS, OCC: HOUSEWIFE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
9. SMT. MAHADEVI
W/O SHIVANAGOUDA PATIL
AGE: 46 YEARS,
OCC: HOUSEWIFE,
R/O: 4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
... PETITIONERS
(BY SRI. J.S.SHETTY, ADVOCATE)
3
AND
1. VIJAYKUMAR
S/O BASAVARAJ CHIKKUMBI,
AGE: 33 YEARS, OCC: BUSINESS,
R/O: 6TH CROSS,
SHARADA COLONY,
YALAKKISHETTAR COLONY,
DHARWAD.
2. SRI BASAVARAJ
S/O NINGAPPA CHIKKUMBI
AGE: 66 YEARS,
R/O: PWD CONTRACTOR,
4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
3. SANTOSH
S/O BASAVARAJ CHIKKUMBI
AGE: 25 YEARS,
OCC: PRIVATE SERVICE,
4TH CROSS, SHIVANAND NAGAR,
HOSAYALLAPUR, DHARWAD.
... RESPONDENTS
(R1 TO R3 SERVED)
THIS PETITION IS FILED UNDER SECTION 115 OF CPC,
PRAYING FOR CALLING FOR THE RECORDS OF O.S.NO.69/2016
ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND
CHIEF JUDICIAL MAGISTRATE DHARWAD, AND TO SET ASIDE
THE ORDER DATED 06.10.2016 PASSED ON I.A.NO.IX FILED
U/O 7 RULE 11(a) OF THE CIVIL PROCEDURE CODE BY
ALLOWING THIS REVISION PETITION WITH COST
THROUGHOUT.
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT, MADE THE FOLLOWING:
4
ORDER
1. This revision is filed challenging an order passed on IA.No. IX filed by the petitioner herein for rejection of the plaint under Order VII Rule 11(A) r/w Section 151 of CPC and Rule 3A of Order 23 of CPC.
2. Vijaykumar, the first respondent/plaintiff, filed a suit seeking for partition and separate possession of his 1/32nd share in respect of suit A and B schedule properties. It was his case that suit schedule A properties were his ancestral and joint family properties and suit B schedule properties were also the joint family properties of the plaintiff and defendant Nos.1 to 11, which had been acquired by the Karnataka Slum Clearance Board and Southwestern Railways. It was his case that the suit properties had not been partitioned and that he was entitled to a legitimate share as per the provisions of Hindu Succession Act.
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3. In his plaint, he contended that defendant Nos.1 to 4 had filed O.S.No.545/2014 seeking for partition and separate possession of their respective shares and in the said suit, he had been arrayed as defendant No.5. However, during the pendency of the suit, the suit against him was dismissed on the basis of a memo filed by defendant Nos.1 to 4. It was stated that after he was deleted from the array of parties, defendant Nos.1 to 4 had entered into compromise behind his back and the said compromise decree did not bind him. He contended that with a view to get his separate and legitimate share, he had filed the present suit.
4. The defendant Nos.5, 6, 8, 10 and 11 filed an application requesting the Court to reject the plaint. It was contended that the suit properties were the subject matter of the earlier O.S.No.545/2014, which had ended in a compromise and the decree was based on the said compromise, had been acted upon and the plaintiff could 6 not maintain the suit in view of the express bar under Order 23 Rule 3A of CPC.
5. The Trial Court, on consideration of the said application, came to the conclusion that the provisions of Rule 3A of Order 23 could be applied only to a person who was a party to the compromise and the said provision would have no application to a person who was not a party to the suit and therefore there was no bar for filing the present suit for partition by the plaintiff. The Trial Court, accordingly, rejected the application seeking for rejection of the plaint.
6. Sri J.S.Shetty, learned counsel appearing for the petitioners contended that Order 23 Rule 3A creates a complete bar for filing of any suit on the ground that the compromise on which the decree was based was not lawful. According to him, even a stranger to the compromise and a person who was not a party to the compromise decree would be hit by the bar under Order 23 Rule 3A for filing a suit in impugning the compromise. 7
7. In support of his arguments, he relied upon the judgment of the Apex Court in the case of Triloki Nath Singh Vs Anirudh Singh (D) Thr. Lrs. And Others reported in 2020 SCC Online SC 444 and also the decision in the case of Devineni Tirupathirayudu @ Ors. Vs Sirapaneni Suramma (D) by LRs @ Others) reported in 2009 DGLS (AHC) 573 (SC).
8. Admittedly, the first respondent herein had filed a suit for partition on the premise that he possessed a share in the suit properties, which according to him, were his joint family and ancestral properties and this right of his, was an independent and distinct right.
9. It was his specific case that any compromise decree obtained in respect of the suit properties, to which he was not a party, could not obviously bind him and he would be entitled to seek for his separate share by filing a suit, notwithstanding a compromise obtained between the other members of his family, who had chosen to exclude him from the compromise. 8
10. The submission of the learned counsel for the petitioner that the bar under Rule 3A of Order 23 would apply even to those persons, who were not parties to the compromise, cannot be accepted for the following reasons.
11. O. 23 R 3 and O. 23 R 3A of the Code of Civil Procedure reads as follows:
3. Compromise of Suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or 9 not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]:
[Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.] 3-A. Bar to suit. No suit shall lie to set aside a decree on the ground that the 10 compromise on which the decree is based was not lawful.
12. As could be seen from R. 3, if it is proved to the satisfaction of the Court that the suit has been adjusted, wholly or in part, by any lawful agreement or compromise and if the said compromise or agreement is in writing and signed by the parties, the Court is obliged to record the compromise and pass a decree in accordance with the said compromise. The said Rule also it further clear that the decree shall be in so far as it relates to the parties to the suit even if the compromise is not the same as the subject matter of the suit.
13. Thus, a decree passed by a Court on the basis of a compromise can only be between the parties to the suit and it cannot be between people who are not parties to the suit. In other words, the compromise recorded and decree passed thereon can only be between the parties to the suit and it cannot be in respect of people unconnected with the suit. 11
14. It therefore follows that the decree passed in OS 525/2014 can only be applicable to the parties to the suit i.e., the defendants and cannot be made applicable to the plaintiff, who was deleted from the array of parties.
15. R. 3A states that no suit shall lie to set aside on the ground that the decree based on the compromise was unlawful. Obviously, the compromise referred to in R 3A can only be referable to the compromise envisaged in R. 3. As stated earlier, under R. 3, a compromise can be recorded only between the parties to the suit and not between persons who are not parties to the suit.
16. Thus, the bar contemplated under Rule 3A would be applicable only to the persons who were parties to the compromise thereby meaning parties to the suit and it would have no application to the persons who are not parties to the suit.
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17. If the arguments of the learned counsel were to be accepted, then a compromise entered into between two parties to a suit, would bind not only the parties to the compromise but also to all other persons who may possess an independent and distinct right over the property, which was the subject matter of the compromise, even if they are not parties to a compromise. This would result in an anomalous result and nullify the rights of persons who have an independent right over the property which was the subject matter of a compromise and that cannot be the intent of the law.
18. In other words, if the submission of the learned counsel is accepted, in a given case, even a collusive compromise decree over a property, would have the effect of depriving all rights a third party may possess over the land independently. This, clearly, would not be the bar envisaged under R. 3A.
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19. The intent behind the framing of Rule 3A is rather clear. R. 3A basically intends to bar a party who has entered into a compromise and obtained a decree based on the compromise, to thereafter resile from the compromise that he had entered into and contend it was unlawful, by filing one more suit.
20. A compromise, is in the nature of a binding contract between the parties, the parties who have entered into a compromise are expected to abide by the terms stated therein. It is for this reason, that R 3A of O 23 creates a bar for those persons who are parties to the compromise from filing a subsequent suit on the ground that the compromise obtained by them was unlawful. In other words, a binding contract entered into between two parties, in a court of law, cannot be annulled or impugned by the filing of a separate suit.
21. It is also to be noticed here that a compromise between two parties is accepted by the Court, only if it is found to be lawful. Obviously, once the 14 compromise is accepted as being lawful, it would be a travesty of justice to permit the parties to the compromise to file a separate suit contending that it was unlawful. I am therefore of the view that the argument of the learned counsel lacks merit.
22. As far as the reliance placed on the decision of the Hon'ble Supreme Court is concerned, as could be noticed, in the case of Triloki Nath Singh Vs Anirudh Singh (D) Thr. Lrs. And Others reported in 2020 SCC Online SC 444 itself, in that case, the person who had filed a suit challenging the compromise was claiming his rights under a person who was a party to the compromise that had been entered into in the said suit and in that context the Apex Court had held that even if the plaintiff was not a party, the bar under Rule 3A would apply.
23. As could be seen from the above, that is not the scenario in this case. In the instant case, the plaintiff was not claiming any rights under any of the persons 15 who were parties to the compromise petition. His claim was based on his independent right to seek for a share in the suit properties, which he had acquired by birth, and not from or through any of the parties to the compromise. I am therefore, of the view that the judgments relied upon by the learned counsel do not support his submissions. As a consequence, this revision lacks merit and is accordingly dismissed.
In view of the dismissal of the appeal, IA.No.1/2016 does not survive for consideration.
Sd/-
JUDGE msr