The single judge bench of Justice Sunil Dutt Mishra of the Patna High Court in the case of Dr. Shanker Prasad vs. Smt. Lakshmi Devi held that the remedy that is not directly available cannot be availed indirectly by clever drafting.
Brief Facts:
The factual matrix of the case is that defendant no 1 instituted the suit for partition with respect to the joint family properties. It was claimed that defendants no. 1 and 2 persuaded plaintiff no. 2 and defendant no. 3 (sisters of defendant no. 1 and defendant no. 2) to not take any share in the property. The compromise petition came into existence and the party was partitioned only between defendant nos. 1 and 2 and a decree of partition in terms of compromise was passed. Thereafter, Plaintiff no. 1 (mother of defendant no. 1 and defendant no. 2) alleged that their sons had never taken care of her and only plaintiff no. 2 has taken care of her. Therefore, the present case is filed by the Plaintiffs in order to challenge the decision passed by the learned trial court.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the trial court has completely failed to appreciate the fact that the partition was already initiated between the parties under Order XXIII Rule 3 of CPC. It was furthermore submitted that the clever drafting on the part of the plaintiff aims to make her suit, which would not have been maintainable otherwise, maintainable by contesting the Compromise Decree.
Contentions of the Opposite Party:
The learned counsel appearing on behalf of the Plaintiff/Opposite Party contended that the trial court had rightly rejected the Petition. It was furthermore submitted that the decree has to be registered in view of Section 17 of the Registration Act and the decree passed was the result of the fraud committed on the plaintiff.
The learned counsel relied upon the judgment titled Madhav Prasad Aggarwal and Another Vs. Axis Bank Limited and Another.
Observations of the Court:
The Hon’ble court observes that the document or record or compromise memo must be compulsorily registered if it seeks to revoke the rights of one and provide right, title, or interest in favour of another with respect to real property valued at Rs. 100 or more.
It was furthermore observed that Rule 3 A of Order XXIII CPC bars the suit from setting aside the decree on the ground that the compromise on which the decree was passed was not lawful
The Hon’ble court relied upon the judgments titled Banwari Lal Vs. Chando Devi, Pushpa Devi Bhagat Vs. Rajinder Singh, R. Rajanna Vs. S.R. Venkataswamy, M/s. Sree Surya Developers and Promoters Vs. N. Sailesh Prasad and Ors, Bhuneshwar Chaubey @ Duldul Chaubey vs. Kalawati Devi and Others, Maharpato Devi Vs. Phulwaso Devi, Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, and T. Arivandanam Vs. T.V. Satyapal & Another.
It was noted that it is clear that the plaintiff has already filed an application with the court under Order XXIII Rule 3 A CPC, which passed the relevant order, to set aside the compromise decree. By doing so, the plaintiff has already taken advantage of the correct legal remedy. Clever drafting cannot be used to obtain a remedy that is not directly available. An abuse of the process of law occurs when an additional suit is filed with the main purpose of declaring the compromise decree null and void, especially when the right remedy has already been pursued.
Based on these considerations, the Hon’ble Court was of the view that the suit was not maintainable.
The decision of the court:
With the above direction, the court allowed the civil revision application.
Case Title: Dr. Shanker Prasad vs. Smt. Lakshmi Devi
Coram: Hon’ble Mr. Justice Sunil Dutt Mishra
Case No.: Civil Revision No. 93 of 2017
Advocates for the Petitioner: Mr. Ganpati Trivedi, Sr. Advocate Mr. Abinash Kumar, Advocate Mr. Kumar Satyakirti, Advocate
Advocates for the Respondents: Mr. J.S. Arora, Sr. Advocate Mr. Manoj Kumar, Advocate Mr. Ravi Bhatia, Advocate
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