Allowed

Smt S Mangalagowramma v. Mr.Basavaraj

Karnataka HC23 May 2023RFA/492/2022

Case brief

AI extract

What is this about?

This regular first appeal was filed against an order rejecting the plaint for not disclosing cause of action as it was barred by Order XXIII Rule 3A CPC. The High Court allowed the appeal, holding that a suit lies as the plaintiff was not a party to the compromise decree and was entitled to challenge its legality in a separate suit.

What did the court decide?

The impugned order rejecting the plaint was set aside. The underlying suit was restored to the trial court for disposal on merits without expressing an opinion on the case's merits.

Smt S Mangalagowramma Vs Mr.Basavaraj — Partition | Karnataka HC (2023)

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RFA No. 492 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF MAY, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO. 492 OF 2022

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BETWEEN:

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SMT. S MANGALAGOWRAMMA D/O LATE DODDAMUNIYAPPA W/O LATE PARAMESHWARA AGED ABOUT 52 YEARS R/AT. NO.10/1, I CROSS SRIRAMANAGARA MAHALAKSHMIPURAM

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BENGALURU-560 086. …APPELLANT

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(BY SRI. SANTOSH S GOGI.,ADVOCATE)

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AND:

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Digitally signed by MALA K N Location: HIGH COURT OF KARNATAKA

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MR.BASAVARAJ S/O. LATE DODDAMUNIYAPPA AGED ABOUT 61 YEARS RESIDING AT MUNIYANAPALYA VILLAGE DASANAPURAHOBLI BANGALORE NORTH TALUK BENGALURU.

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MR.CHANDRASHEKARS S/O. LATE DODDAMUNIYAPPA AGED ABOUT 61 YEARS RESIDING AT MUNIYANAPALYA VILLAGE DASANAPURAHOBLI BANGALORE NORTH TALUK BENGALURU.

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RFA No. 492 of 2022

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MRS.BASAVALINGAMMA S/O. LATE DODDAMUNIYAPPA AGED ABOUT 65 YEARS. RESIDING AT KUDUREGERE VILLAGE DASANAPURA HOBLI BANGALORE NORTH TALUK BENGALURU. …RESPONDENTS

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( R1 TO R3 ARE SERVED & UNPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE ORDER DATED 20.01.2022 PASSED IN OS No.1333/2020 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, ALLOWING THE IA No.3 FILED UNDER RULE 11(a) AND (d) OF ORDER 7 OF CPC BY THE 3RD DEFENDANT FOR REJECTION OF PLAINT AND ETC.,

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, T.G. SHIVASHANKARE GOWDA J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the order dated 20.01.2022 passed in O.S.No.1333/2020 by the Court of III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru ('the Trial Court' for brevity) in rejecting the plaint under Order VII Rule 11(a) and (d) of CPC.

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Appellant herein was the plaintiff and respondents were the defendants before the trial court. For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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RFA No. 492 of 2022

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The facts leading to this appeal are, plaintiff

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and defendants No.1 to 3 are brothers and sisters and

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they constitute a Hindu Joint Family. Muninanjappa is the grandfather and Doddamuniyappa is the father of plaintiff and defendants. They had acquired several properties and died intestate, thereby, plaintiff and defendants succeeded to their properties. The plaint schedule properties are all joint family properties of the plaintiff and defendants. After death of their father, first defendant being the eldest son became the Kartha of the family. Some of the properties are standing in his name, some of them are continued in the name of their father and some of them are continued in the name of the second defendant. Plaintiff and defendants are in joint possession and enjoyment of the suit properties.

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3.1. After the death of father, plaintiff requested

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defendant No.1 for allotment of 1/4^th of her share in the suit properties, but he postponed the partition on

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RFA No. 492 of 2022

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one or the other ground and she waited with bonafide belief that the defendants will consider her request for

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partition. The plaintiff came to know that in the month of November 2020, the second defendant had filed a suit in O.S.No.2065/2014 before the court of III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, seeking partition. Both defendants No.1 and 2 entered into a compromise in the said suit behind the back of the plaintiff with an intention to deprive her lawful right over the suit schedule properties. In the said suit, since plaintiff

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was not a party, she was not aware of the said proceedings and the compromise so entered into between defendants No.1 and 2 is not binding on her.

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3.2. In the last week of October 2020 and subsequently, the plaintiff demanded defendants to effect the partition, but they denied and made attempts to alienate the property. Hence, plaintiff filed the instant suit seeking declaration that the

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RFA No. 492 of 2022

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compromise decree entered into between defendants No.1 and 2 is unlawful, null and void and is not binding on her and also seeking partition of 1/4^th share in the suit property.

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Defendant No.1 filed I.A.No.3 under Order VII Rule 11(a) and (d) of CPC, seeking rejection of the plaint on the ground that the suit is not lawful, no independent or separate suit can be filed for setting aside the compromise decree. Plaintiff cannot file a separate suit for partition on the ground that she was not a party to the compromise decree. Plaintiff can question the validity of the compromise before the court, which has recorded the compromise.

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4.1. The application is opposed by the plaintiff

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on the ground that it is false, frivolous and vexatious. In the compromise decree, plaintiff and defendant No.3 were not made parties, though they are necessary party. Defendants No.1 and 2 colluding with each other entered into a compromise behind the

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RFA No. 492 of 2022

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back of the plaintiff and defendant No.3 and the said compromise is not binding on them. Hence, the application is liable to be rejected.

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On the basis of the above pleadings, the Trial

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Court has raised the following points:

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"1. Whether the plaint can be rejected on the ground that the plaint does not disclose the cause of action and barred by law?

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2. What order?"

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We have heard the arguments of Sri.Santosh

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S.Gogi, learned Counsel for the appellant/plaintiff

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and perused the material on record.

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It has been argued by the learned counsel for

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the plaintiff that in O.S.No.2065/2014, neither the plaintiff nor the defendant No.3 are the parties. The compromise was recorded in between defendants No.1 and 2 only. In what way, the said compromise

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is binding on the plaintiff is not understood by the Trial Court. The Trial Court has misconstrued Order

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RFA No. 492 of 2022

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XXIII Rule 3A of CPC and committed an error in holding that the third party compromise is binding on the plaintiff. The cause of action has been specifically pleaded in the plaint, but the Trial Court held that there is no cause of action for the suit. The defendants cannot file such an application when there is no bar under Order XXIII Rule 3A of CPC for filing of a separate suit. Hence, the impugned order is erroneous and calls for interference.

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The defendants/respondents though served

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but unrepresented.

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We have given our anxious consideration to the arguments addressed on behalf of plaintiff and the material on record.

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The points that arise for our consideration

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are:

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(i) Whether the suit is barred under Order XXIII Rule 3A of CPC?

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RFA No. 492 of 2022

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(ii) Whether the plaint does not

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disclose the cause of action?

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The relationship between the parties is not in

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dispute. It is admitted that defendants No.1 and 2

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have entered into a compromise on 18.12.2019 in a suit filed in O.S.No.2065/2014. It is also not disputed that the plaintiff and the defendant No.3 were not the parties to the said suit.

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For the purpose of better appreciation, we

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refer to the prayer made in the plaint, which reads as

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follows:

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"WHEREFORE, the plaintiffs pray that this Hon'ble Court be pleased to pass a judgment and decree;

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i) To declare that the compromise decree dated 18.12.2019 passed in suit O.S.No.2065/2014, on the file of the III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru is illegal, unlawful and null and void and not binding on the plaintiff.

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ii) To affect the partition at the rate of 1/4th each equal share in respect of schedule properties among the plaintiff and defendants.

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9 - RFA No. 492 of 2022

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iii) Direct the defendants to pay the mesne profits in respect of suit schedule properties or hold an enquiry as to the mesne profits.

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iv) To grant such other relief or reliefs deems fit as the circumstances explained above including cost of the suit, in the interest of justice and the equity."

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The plaintiff has specifically pleaded that:

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(i) the cause of action arose in the year 1992

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soon after the death of their father Doddamuniyappa

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leaving behind the plaintiff and defendants as his legal heirs;

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(ii) On 15.12.2014, the defendant No.2 filed the suit in O.S.No.2065/2014, the compromise petition on 14.09.2019 and also recorded acceptance of compromise on 18.12.2019; and

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(iii) In the last week of October 2020 when the plaintiff demanded for her share, the defendants denied and subsequently they were trying to alienate the properties. For better appreciation, we extract para-19 of the plaint as follows:

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RFA No. 492 of 2022

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"19. The cause of action arose for the suit when Sri.Doddamuniyappa died intestate in the year 1992 leaving behind all his children i.e. the plaintiff and defendants herein, and on 15.12.2014 when the second defendant filed the suit O.S.No.2065/2014 and on 14.09.2019 when the compromise petition was filed by the first and second defendants and on 18.12.2019 when the decree was passed in suit O.S.2065/2014 when the plaintiff demanded for her share and when defendants denied during last week of October 2020 and subsequently the defendants are trying to alienate the property without knowledge of the plaintiffs within the jurisdiction of this Hon'ble Court."

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For better understanding, it is relevant to extract the provisions of Order XXIII Rule 3A of CPC,

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which reads as follows:

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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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Admittedly, plaintiff and defendant No.3

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were not the parties to the compromise and this has

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RFA No. 492 of 2022

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been noted by the Trial Court in the impugned order

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at para-11. Para-11 reads as follows:

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"11. On perusal of the papers submitted by the plaintiff and defendant No.1, plaintiff and defendant No.1 to 3 are brothers and sisters is not in question. Defendant No.2 filed O.S.2065/2014 against the defendant No.1 in respect of suit schedule property before the Senior Civil Judge Court is not in question. Plaintiff and defendant No.3 were not parties to the O.S.2065/2014 is not in question. Defendant No.1 and 2 filed the compromise petition in O.S.2065/2014 is not in question. The court accepted the compromise petition and draw the compromise decree on 18/12/2019 is not in question."

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Co-ordinate Bench of this Court in

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Siddalingeshwar and Others -vs- Virupaxgouda

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and Others¹ at para-14 held as under:

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"14. . . . . . . . . . . . . A bar is imposed to challenge the compromise in a separate suit because a party to a compromise is entitled to challenge the compromise as not lawful, either by

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1 ILR 2003 KAR 2559

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RFA No. 492 of 2022

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filing an application in the same suit or by filing an appeal under Order 43 Rule 1A. But such remedies are available only to the parties to the suit. A person who is not a party to the suit, cannot obviously file an application in the suit, or an appeal, to challenge a compromise as being not lawful. . . . . ."

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In view of the above position of law, remedy

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to a party to challenge the compromise is only available if he is a party to the suit. If he is not a party to the suit, he cannot file an application in the said suit or an appeal to challenge the compromise being not lawful.

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We have carefully perused the impugned order. The Trial Court has admittedly recorded that plaintiff and the defendant No.3 are not parties in O.S.No.2065/2014, they have no option other than filing a separate suit.

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Plaintiff has pleaded the cause of action from the year 1992 to 2020 as referred supra. There

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is a clear recital in the plaint, the manner of cause of action that arose to file the suit. Hence, the finding recorded by the Trial Court that the plaint does not disclose the cause of action and that the suit is barred by Order XXIII Rule 3A of CPC is erroneous and calls for interference.

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In the facts and circumstances of the case, without expressing any opinion on the merits of the case, we deem it proper to remand the matter for disposal in accordance with law. In the result, the following:

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ORDER

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(i) Appeal is allowed.

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(ii) The impugned order is set aside.

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(iii) O.S.1333/2020 stands restored on the file of

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the Trial Court. Learned Trial Judge shall decide the case on merits in accordance with law.

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RFA No. 492 of 2022

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(iv) Without further notice, parties shall appear

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before the Trial Court on 16.06.2023;

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(v) Office shall transmit the TCR along with the

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copy of this judgment forthwith.

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Parties to bear their own costs.

Sd/JUDGE

Sd/JUDGE

KNM

List No.: 1 Sl No.: 21

Smt S Mangalagowramma v. Mr.Basavaraj

Case brief

What is this about?

What did the court decide?

Smt S Mangalagowramma v. Mr.Basavaraj

Case brief

What is this about?

What did the court decide?

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Issues for consideration

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