M/S Bharat Timber And ... vs Smt. Kalavati W/O. Late ...
2022 Latest Caselaw 8696 Kant

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                                                          WP No. 100888 of 2022


                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 14TH DAY OF JUNE, 2022

                                             BEFORE
                                THE HON'BLE MR JUSTICE R.DEVDAS

                           WRIT PETITION NO. 100888 OF 2022 (GM-CPC)

                      BETWEEN:

                      M/S BHARAT TIMBER AND CONSTRUCTION CO.,
                      BY ITS PARTNER
                      SHRI. JYOTIN C. GANDHI
                      AGE. 73 YEARS,
                      OCC. BUSINESS,
                      R/O. ITS REGISTERED GENERAL
                      POWER OF ATTORNEY HOLDER
                      SHRI. NISAR AHAMAD ABDUL
                      GAFAR LOHAR
                      AGE. 51 YEARS,
                      OCC. AGRICULTURE AND BUSINESS,
                      R/O. KARWAR ROAD,
                      HUBBALLI-580024

                                                                   ...PETITIONER
                      (BY SRI. V M SHEELVANT, ADVOCATE)

                      AND:
J
MAMATHA

Digitally signed by
J MAMATHA
Location: Dharwad
                      1.   SMT. KALAVATI W/O LATE NARAYANRAO
Date: 2022.06.18
11:48:06 +0530             JAHAGIRDAR
                           AGE. 51 YEARS,
                           OCC. HOUSEHOLD AND
                           AGRICULTURE,
                           R/O. BALAKUNDI VILLAGE,
                           ILAKAL TALUKA,
                           DIST. BAGALKOT-587101
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                                  WP No. 100888 of 2022


2.   SHRI. BHIMRAO S/O. LATE NARAYANRAO
     JAHAGIRDAR
     AGE. 32 YEARS,
     OCC. AGRICULTURE,
     R/O. BALAKUNDI VILLAGE,
     ILAKAL TALUKA,
     DIST. BAGALKOT-587101

3.   SMT. ARUNA W/O. ARVIND SODEGAR
     AGE. 31 YEARS,
     OCC. HOUSE WIFE,
     R/BY HER GENERAL POWER OF
     ATTORNEY HOLDER
     SHRI. BHIMRAO N. JAHAGIRDAR
     AGE. ABOUT 40 YEARS,
     OCC. BUSINESS AND
     AGRICULTURE,
     R/O. BALAKUNDI VILLAGE,
     ILAKAL TALUKA,
     DIST. BAGALKOT-587101

                                          ...RESPONDENTS
(BY SRI. H.R. DESHPANDE, ADVOCATE )



      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUION OF INIDA PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT, ORDER OR DIRECTION AND QUASH THE ORDER DATED
21.01.2022 PASSED ON IA.NO.11 IN OS.NO.67/2007 BY THE
PRINCIPAL CIVIL JUDGE (SENIOR DIVISION) AND JMFC,
HUNGUND PRODUCED AT ANNEXURE-L AND ETC.


      THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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                                                  WP No. 100888 of 2022


                                    ORDER

R.DEVDAS J., (ORAL):

The petitioner who is the plaintiff in O.S.No.67/2007

is before this court aggrieved of the order dated

21.01.2022 passed by the trial court on I.A.No.XI.

2. By the impugned order, the trial court granted

permission to the respondents/defendants to file written

statement. It is not disputed that the said suit filed at the

hands of the petitioner/plaintiff seeking a decree that the

lease period granted in favour of the plaintiff is renewed

by operation of law automatically for a period of 30 years

and for grant of prohibitory injunction against the

defendants restraining them permanently from interfering

with the peaceful possession and enjoyment and

extraction of granite quarrying work and its transportation

was dismissed by the trial court on 26.02.2011. However,

it is the contention of the petitioner that though

opportunity was given to the respondents/defendants,

they did not file written statement. However, on

WP No. 100888 of 2022

05.09.2009, the Power of Attorney Holder of the

defendants/respondents filed a compromise petition under

Order XXIII Rule 3 read with Section 151 of CPC signed by

the petitioner/plaintiff and Power of Attorney Holder of the

defendants/respondents. For consideration of the same,

the matter was posted on 19.09.2009. At that point of

time, I.As.No.VIII and IX were filed by impleading

applicants seeking to implead themselves. However, it is

contended that while disposing of I.As.No.VIII and IX, the

said suit was also dismissed as not maintainable.

Aggrieved by the said order of dismissal, the

petitioner/plaintiff preferred an Regular Appeal in

R.A.No.51/2011.

3. Learned Counsel for the petitioner submits that

during the course of the appeal, the respondents herein

filed a memo dated 21.08.2011 admitting the averments

made in the memorandum of appeal in its entirety and

stated that they do not have any objection for the court to

allow the appeal. Consequently, by order dated

WP No. 100888 of 2022

24.09.2021, the first appellate court allowed the appeal

and while setting aside the order of dismissal of the trial

court, remanded the matter to the trial court for fresh

disposal in accordance with law.

4. Learned Counsel for the petitioner submits that

when the respondents admitted the averments made in

the memorandum of appeal including the fact that the

compromise petition was filed at the hands of the plaintiff

and the defendants, the respondents were required to

submit before the trial court after the remand that the said

matter could be disposed of in terms of the compromise

petition. On the other hand, an application was filed in

I.A.No.XI seeking leave of the court to file written

statement. Learned counsel would therefore submit that

the trial court erred in allowing the application and

permitting the respondents/defendants to file written

statement, when admittedly the respondents had

submitted before the first appellate court that the parties

had filed a compromise petition even before the suit was

WP No. 100888 of 2022

dismissed. Moreover, it is submitted that no explanation

is offered for the delay in filing the written statement and

in terms of the amended provisions of Order VIII Rule 1

and 2 of CPC, the trial court should not have permitted the

respondents to file the written statement.

5. Per contra, learned counsel for the respondents

would submit that even if the respondent had admitted the

averments made in the memorandum of appeal in

R.A.No.51/2011, the respondents cannot be forced to

accept the compromise petition which was filed in the year

2009. Moreover, the Regular Appeal filed at the hands of

the petitioner was allowed on 24.09.2021 and the parties

were directed to appear before the trial court on

18.10.2021 without awaiting for further notice/summons

from the trail court. There was a specific direction by the

first appellate court that since the suit is of the year 2007,

the trial court shall dispose of the suit within a outer limit

of six months. After the suit was taken up on 18.10.2021

by the trial court, the respondents filed the application

WP No. 100888 of 2022

seeking leave of the court to file the written statement.

Learned Counsel for the respondents submits that the

directions of the first appellate court was that the trial

court shall hear the matter afresh. In the changed

circumstances, the respondents/defendants were not in a

position to get the suit disposed of in terms of the

compromise petition, which was entered into in the year

2009, having regard to the many changed circumstances

in the intervening period.

6. Having heard the learned counsels and perusing

the petition papers, this Court finds that the contention of

the petitioner/plaintiff that since the parties to the suit had

filed a compromise petition on 05.09.2009, the

respondents/defendants should not have been permitted

to file written statement and on the contrary, the trial

court should have considered the compromise petition filed

on 05.09.2009 would be quite contrary to the directions

given by the first appellate court. If the contention of the

petitioner is to be accepted that since the parties had filed

WP No. 100888 of 2022

a compromise petition before the suit was dismissed on

26.02.2011, the trial court was duty bound to consider the

compromise petition and pass necessary orders, that

would be quite contrary to the directions issued by the

first appellate court. The first appellate court in its order

dated 24.09.2021 had remanded the matter back to the

trial court for fresh disposal in accordance with law. If the

petitioners were aggrieved that the first appellate court

had not remanded the matter for consideration of the

compromise petition, then the petitioner should have

questioned that portion of the order or directions issued by

the first appellate court.

7. Secondly, even if the matter was remanded for

reconsideration of the compromise petition filed earlier by

the parties and if such compromise petition was not

accepted, then to proceed in accordance with law, even

then the respondents/defendants were entitled to submit

that they would not accept the compromise petition at that

point of time. It is by now well settled that unless and

WP No. 100888 of 2022

until the parties appear before the court and ascribe their

signatures stating before the court that the parties have

understood what has stated in the compromise petition

and they wish to get the matter disposed as per the terms

drawn in the compromise petition, the terms of the

compromise petition cannot be recorded by the trial court.

Even at that juncture, it is permissible for the parties to

resile from the terms agreed earlier and/or rescind from

the terms of the compromise petition.

8. Insofar as the delay on the part of the

respondents/defendants in filing the written statement is

concerned, it is evident from the fact matrix of this case

that though the matter was dismissed on 26.02.2011, the

first appellate court remanded the matter for fresh

consideration by passing orders dated 24.09.2021.

However, since the trial court had passed an order earlier

rejecting the prayer of the respondents/defendants for

filing written statement, the respondents/defendants were

required to file an application seeking leave to file written

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WP No. 100888 of 2022

statement. Nevertheless, the trial court has considered

the contentions raised at the hands of the petitioner/

plaintiff regarding the compromise petition and rightly

rejected same. Further, having regard to the judgments of

the Hon'ble Supreme Court as noticed in the impugned

order of the trial court, it has thought it fit to permit the

respondents/defendants to file written statement and go

on with the matter.

9. This Court does not find any infirmity in the

impugned order by which the respondents/defendants

were permitted to file written statement.

10. Consequently, the writ petition stands

dismissed.

Pending I.As., if any, stand disposed of.

Sd/-

JUDGE

DL