Allowed

Anand S/O Omanna Patil v. Sakira Khudabaz Bellary (Bellary)

Karnataka HC25 Nov 2020CRP/100017/2018

Case brief

AI extract

What is this about?

This civil revision petition challenged a trial court's order maintaining a suit to declare a prior compromise decree null and void. The High Court found the subsequent suit barred by law after the defendants had exhausted remedies to challenge the original decree.

What did the court decide?

The impugned order rejecting the intervention application was set aside; the application to dismiss the plaint as barred by law was allowed.

Anand S/O Omanna Patil Vs Sakira Khudabaz Bellary… — Property and Title | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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CIVIL REVISION PETITION NO.100017/2018

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BETWEEN:

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Anand S/o. Omanna Patil, Age 51 years, Occ: Nil, R/o. Shivshakti Nagar, Belagavi, Dist. Belagavi – 590001.

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... Petitioner

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(By Sri. B.S.Kamate, Advocate)

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AND:

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Sakira Khudabaz Bellery (Bellary) Age 76, Occ: Household work, R/o. Sambra, Tq. & Dist. Belagavi – 590001.

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Rashida W/o. Sardar Baig,

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Since deceased by her L.Rs.

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Samina Nahid Baig

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W/o. Mohammad Shamin, Age 40, Occ: Legal Practitioner, R/o. Plot No.14, Prabhavati colony, Mutaga, Tq. & Dist. Belagavi-590001.

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Smt. Sajida W/o. Khalid Irfan, Age 73 years, Occ: Household work, R/o. Sambra, Tq. & Dist. Belagavi-590001.

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Baburao Nagappa Patil,

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Age 55 years, Occ: Agriculture, R/o. 741/6d, vidya nagar, Angol, Belagavi – 590001.

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...Respondents

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(Sri. A.L.Sandrimani and Sri. S.B.Rawoot, Advocates for R1 to R3; Notice to R4 served)

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This Civil Revision Petition is filed under Section 115 of CPC, 1908, against the order dated 08.01.2018 passed in O.S.no.1791/2013 on the file of the III Additional Civil Judge & JMFC Court, Belagavi, rejecting the I.A.No.V, filed under Order VII Rule 11(d) r/w. Section 151 of CPC.

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This petition coming on for Admission through physical hearing/video conferencing hearing this day, the court made the following:

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ORDER

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The present petitioner who is the defendant No.1 in O.S.No.1791/2013 pending in the Court of the III Additional Civil Judge & JMFC Court, Belagavi (for brevity herein after referred to as ‘the trial Court’) has challenged the order dated 08.01.2018 passed by the trial Court in the said original suit, rejecting his Interlocutory Application No.V, filed under Order VII

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Rule 11 (d) read with Section 151 of Code of Civil Procedure (for brevity hereinafter referred to as ‘CPC’).

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The materials placed before this Court would go to show that, the said suit i.e. O.S.No.1791/2013 was filed by the present respondents for the relief of declaration to declare that the decree passed by the Court of the I Additional Civil Judge (Jr. Dn.), Belagavi in O.S.No.200/2004 dated 15.07.2004 is null and void and

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not binding on the plaintiff, and for the relief of injunction. In the said suit, the present petitioner was defendant No.1 who after his appearance filed I.A.No.V under Order VII Rule 11(d) of CPC, contending that the said suit was not maintainable for the reason that O.S.No.200/2004 was decreed upon a lawful compromise entered into between the parties and thereafter the plaintiff had made several futile attempts to get the said order of compromise recalled, but he has failed. In that regard, he approached this High Court

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also, but could not get any favorable order in his favour, as such, the suit is barred by law and not maintainable. However, the trial Court by its impugned order dated 08.01.2018, rejected the said application, aggrieved by which the defendant No.1 in the original suit has preferred the present petition.

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The respondent is being represented by his

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counsel.

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Heard the arguments from the learned

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counsel for the petitioner.

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In spite of granting sufficient and several opportunities and even making it clear that, no further adjournment would be granted in the matter, the learned counsel for the respondents has remained absent, as such, no argument was addressed from the respondents’ side.

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Perused the materials placed before this

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Court.

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From the materials placed before this Court

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and the submission made by the learned counsel for the petitioner, the facts leading to the present impugned order with chronological events can be summarized as below.

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The present petitioner had instituted an original suit in O.S.No.200/2004 against the present respondents including one Sri. Rafiqahamad Alisab Mujawar and one Smt. Rashida W/o. Saradar Baig (since deceased by her L.Rs.). The suit was for the relief of permanent injunction. Both the parties entered into a compromise, as such, a joint compromise petition under Order XXIII Rule 3 of CPC was filed in O.S.No.200/2004 which came to be allowed and the suit was decreed as per the joint compromise petition on 21.07.2004.

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After the said compromise petition, the present respondents who were the defendants in the said original suit, filed a Miscellaneous Petition No.25/2004 under Order XXIII Rule 3(a) of CPC which came to be dismissed on 29.07.2005 for non prosecution when the matter was for the cross-examination of the witnesses.

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Seeking recalling of the said order of the dismissal and restoration of the Miscellaneous Petition No.25/2004, the very same petitioners (respondents herein) filed one more Miscellaneous Petition No.40/2005 which also came to be dismissed on 12.04.2017, due to non tendering of P.W.1 for his crossexamination from the opposite side.

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Thereafter the petitioners in the said Miscellaneous Petitions approached this Court by filing a writ petition in W.P.No.67082/2012 (GM-CPC) which came to be

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disposed of on 13.09.2013 with the following

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observations :

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“The petitioners’ have raised the challenge to the compromise decree, dated 15.07.2004 passed by the First Additional Civil Judge (Jr. Dn.), Belgaum in O.S.No.200/2004. I am disinclined to entertain this writ petition on the short ground of maintainability. Needless to observe that it is open to the petitioners to raise the challenge to the said decree in appropriate proceedings.”

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After the disposal of the said writ petition, the

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petitioners in writ petition filed the present Original Suit No.1791/2013. It is contending that the said suit is barred by law, the defendant No.1 in the said

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suit filed I.A.No.V under Order VII Rule 11(d) of CPC, which came to be rejected by the impugned order, as such, the said defendant No.1 is before this Court as the petitioner in this petition.

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The learned counsel for the petitioner in his arguments submitted that, since the plaintiffs in

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O.S.No.1791/2013 had already exhausted their remedy

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under Order XXIII Rule 3(a) of CPC, they cannot on the same cause of action maintain the present suit, that too, after their futile exercise through different Miscellaneous Petitions and approach to this High Court. He further submits that, however, the trial Court misconstrued the observation made by this Court in the Writ Petition and read it as a direction given to it to entertain the suit, as such, it proceeded to pass the impugned order which is erroneous.

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As already observed, the learned counsel for the respondent has remained absent, as such, no argument was addressed from the respondent side.

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Order XXIII Rule 3 & Order XXIII Rule 3(a) of CPC reads as below:

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“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

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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 not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit.

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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.

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Explanation – An agreement or compromise which is void or viodable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.

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3A. Bar to suit : - No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.”

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In the instant case, it is an admitted fact

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that, seeking setting aside of the compromise decree, the defendants in O.S.No.200/2004 (Plaintiffs in O.S.No.1791/2013) had filed a Miscellaneous Petition No.25/2004 under Order XXIII Rule 3(a) of CPC. As observed above, the said petition came to be dismissed. It is thereafter seeking restoration of the said petition, the very same petitioners filed one more Miscellaneous Petition No.25/2005, which also came to be dismissed for their own fault for not tendering themselves for cross-examination. Thus, an attempt made by them to get setting aside of the compromise decree in O.S.No.200/2004 came to an end through those two Miscellaneous Petitions. However, they approached this Court through Writ Petition No.67082/2012 only to secure the order which is extracted above. The above extracted order clearly go to show that, the Court was disinclined to entertain the writ petition on the short

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ground of maintainability, however, it kept open to the petitioner to raise the challenge to the said decree in appropriate proceedings. Nowhere it mentioned or nowhere it granted any express liberty to the petitioners to institute any fresh suit for the same cause of action seeking setting aside of the compromise decree. However, the trial Court in its impugned order in its short reasoning without discussing the point of alleged

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bar by law of the suit before it, under Order VII Rule 11(d) of CPC, only referred to the order passed by this Court in W.P.No.67082/2012 on 13.09.2013 and observed that as per the said order the trial Court ought not to have shut the door for the plaintiffs to avail the remedy with subject to proof. The plaintiffs and defendants have liberty to prove their contentions in the appropriate stage. With such observation it proceeded to pass the impugned order rejecting the application filed by the defendant. By virtue of the above analysis and

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the flow of the events chronologically, it is clear that the defendants in O.S.No.200/2004 who were the plaintiffs in subsequent O.S.No.1791/2013 had made all their attempts and made use of the provision of law available to them including the one under Order XXIII Rule 3(a) of CPC in seeking setting aside of the compromise decree, however, their attempt ended in futile. It does not mean that the High Court has in writ petition permitted them to institute a fresh original suit for the relief of declaration that the compromise decree passed in O.S.No.200/2004 was null and void. The trial Court since has misconstrued the said order of this Court and without referring to the fact that the plaintiffs before it had already exhausted all remedy and as such their present suit O.S.No.1791/2013 was barred by law under Order VII Rule 11(d) of CPC, it proceeded to pass the impugned order rejecting the I.A.No.V filed by the defendant No.1. Since the said order is erroneous, the

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interference by this Court is warranted to set aside the said order.

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Accordingly, I proceed to pass the following

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order:

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ORDER

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The Civil Revision Petition is allowed.

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The order dated 08.01.2018 passed by the III Additional Civil Judge & JMFC Court, Belagavi on Interlocutory Application No.V filed under Order VII Rule 11(d) read with Section 151 of Code of Civil Procedure (C.P.C.) in O.S.No.1791/2013 is set aside. The said I.A.No.V filed under Order VII Rule 11(d) read with Section 151 of CPC by the defendant No.1 therein is allowed. The plaint of the plaintiff in O.S.No.1791/2013 is rejected as barred by law under Order VII Rule 11(d) of CPC.

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Sd/JUDGE

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*Svh/-

Anand S/O Omanna Patil v. Sakira Khudabaz Bellary (Bellary)

Case brief

What is this about?

What did the court decide?

Anand S/O Omanna Patil v. Sakira Khudabaz Bellary (Bellary)

Case brief

What is this about?

What did the court decide?

What the court decided

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