Karnataka High Court
N R Nagaraj vs Remco (Bhel) House Building on 14 December, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
R.F.A. No.1743 OF 2013
C/w
R.P. No.228 OF 2011
IN R.F.A.No.1743/2013:
BETWEEN:
1. N.R.NAGARAJ,
S/O LATE RAMEGOWDA,
AGED ABOUT 47 YEARS,
R/AT No.544, 5TH MAIN,
KENGERI SATELLITE TOWN,
BANGALORE - 560 060.
2. G.RAVINDRA REDDY,
S/O LATE G.V.REDDY,
Digitally AGED ABOUT 46 YEARS,
signed by
KIRAN R/AT No.26, 4TH CROSS,
KUMAR R BINNY LAYOUT, 3RD STAGE,
Location:
HIGH VIJAYANAGAR,
COURT OF BANGALORE-560 040.
KARNATAKA
3. P.T.SADASHIVAIAH,
S/O LATE THOTADAPPA,
AGED ABOUT 68 YEARS,
4. N.NANJUNDA,
S/O P.T.SADHASHIVAIAH,
AGED ABOUT 48 YEARS,
BOTH ARE R/AT PATTANAGERE VILLAGE,
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
KENGERI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 091. ... APPELLANTS
(BY SRI.SHARATH.S.GOWDA, ADVOCATE)
AND:
1. REMCO (BHEL) HOUSE BUILDING,
CO-OPERATIVE SOCIETY LTD.,
No.364, 5TH MAIN, (RPC) REMCO ROAD,
VIJAYANAGAR II STAGE,
BANGALORE-560 040.
2. SMT. PARVATHAMMA,
W/O P.T.SADHASHIVAIAH,
AGED ABOUT 65 YEARS,
R/AT PATTANAGERE VILLAGE,
KENGERI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 091. ... RESPONDENTS
(BY SRI.D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI.SARAVANA, ADVOCATE FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED:02.03.2009 PASSED IN
O.S.No.5471/2002 ON THE FILE OF THE XXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY
ALLOWING THE PETITION FILED UNDER ORDER 23 RULE 3.
IN R.P.No.228/2011:
BETWEEN:
1. SRI.P.T.SADASHIVAIAH,
AGE 72 YEARS,
S/O LATE THOTADAPPA,
2. SMT.PARVATHAMMA,
AGED ABOUT 66 YEARS,
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
W/O P.T.SADASHIVAIAH,
3. SRI.N.NANJUNDA,
AGED ABOUT 43 YEARS,
S/O P.T.SADASHIVAIAH,
ALL ARE R/AT PATTANAGERE VILLAGE,
KENGERI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE-560 091. ... PETITIONERS
(BY SRI.S.SHANKAR SHETTY, ADVOCATE;
VIDE ORDER DATED:05.06.2018, SRI. NAVEEN G.S.,
ADVOCATE)
AND:
1. REMCO (BHEL) HOUSE BUILDING,
CO-OPERATIVE SOCIETY LTD.,
REGD. OFFICE #364, 5TH MAIN,
RPC (REMCO) ROAD, VIJAYANAGAR,
II STAGE, BANGALORE-560 040
REPRESENTED BY ITS PRESIDENT
SHANKAR G.BELERI.
2. SRI. K.BHARATH KUMAR,
S/O M.KODANDA RAMA,
AGED ABOUT 46 YEARS,
R/AT No.6/1, II CROSS,
K.K.LANE, BEHIND SHANTHALA
SILKS AND SAREES, COTTONPET,
BANGALORE-560 053.
... RESPONDENTS
(BY SRI.D.R.RAVISHANKAR, SENIOR COUNSEL FOR
SRI.SARAVANA, ADVOCATE FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)
THIS PETITION IS FILED UNDER ORDER 47 RULE 1 OF
CPC, PRAYING FOR REVIEW THE ORDER DATED:07.01.2009
PASSED IN RFA.1053/2008 ON THE FILE OF THE HON'BLE
HIGH COURT OF KARNATAKA, BANGALORE.
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RFA No. 1743 of 2013
C/W RP No. 228 of 2011
THIS APPEAL ALONG WITH REVIEW PETITION HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 18.11.2023,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. Regular First Appeal No.1743 of 2013 is filed
challenging the decree that has been passed on the basis
of a compromise petition.
BRIEF FACTS:
2. The facts of the case leading up to the filing of this
appeal indicates the manner in which the process of the
Court is abused by an unscrupulous litigant.
3. On 05.08.2002, Caveat Petition No.3846 of 2002 was
filed by P.T.Sadashivaiah, Parvathamma and N.Nanjunda
(hereinafter referred to as "the owners" for the sake of
brevity and convenience), through their Power of Attorney
Holder - K. Bharath Kumar.
4. K. Bharath Kumar stated that the aforementioned
three persons were the original owners of the lands
bearing Sy.No.24/3 measuring 1 acre and 35 guntas, and
Sy.No.17/1 admeasuring 27½ guntas, both situated at
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Pattanagere village, Kengeri Hobli, Bengaluru South Taluk,
Bangalore District (hereinafter referred to as "the
lands/suit properties" for the sake of brevity).
5. It was stated that the aforementioned three persons
had sold the lands to the REMCO (BHEL) House Building
Co-operative Society Limited (hereinafter referred to as
"the Society" for the sake of convenience) under the
Agreements of Sale dated 29.04.1984, 27.02.1985 and
15.03.1992, and they had also executed a Power of
Attorney dated 11.06.1985 to put the Society in
possession.
6. It was stated that the lands had been notified for
acquisition in favour of the Society, but ultimately, the
Hon'ble Supreme Court had quashed the acquisition
proceedings. It was stated that thereafter, the
aforementioned owners had executed a Deed of
Declaration-cum-Ratification on 14.12.2000 in favour of
the Society and it was learnt that they were likely to file a
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suit and seek an interim order and hence, the caveat was
being filed.
7. It is not in dispute that this Power of Attorney holder
i.e., K. Bharat Kumar was the paid Secretary of the
Society, which had been arrayed as the respondent in the
caveat. In other words, the paid Secretary of the Society
filed a caveat petition on behalf of the owners against the
Society that had employed him.
8. On 09.08.2002 i.e., four days after the caveat had
been filed, a suit came to be filed by the Society for a
declaration that the Society had acquired valid right, title
and interest over the suit properties.
9. A decree of Permanent Injunction to restrain the
owners from interfering with the possession and
enjoyment of the suit properties by the Society and its
members was also sought.
10. In the plaint, it was admitted that for the purpose of
formation of a residential layout, the Society had
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purchased the suit properties by way of an Agreement of
Sale dated 29.04.1984 from the owners i.e., the
defendants.
11. It was stated that the owners had also executed a
Power of Attorney in favour of the Society on 28.06.1986
after receiving full consideration. It was stated that the
Power of Attorney conferred certain powers on the Society
including the power to manage the suit properties. It was
stated that thereafter, further agreements dated
27.02.1985 and 15.03.1992 were also entered into
between the Society and the owners, and in those
Agreements of Sale, the Society had paid additional
payments to the owners and the owners had accordingly
relinquished their right, title and interest over the suit
properties in favour of the Society.
12. It was stated that after taking over the lands and by
virtue of conferment of rights, the Society had invested a
huge sum of money for the formation of the layout,
including laying of the roads, trenches and drainages, and
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it had also allotted sites to its members. It was stated
that the Society had also executed Sale Deeds in favour of
the allottees i.e., its members.
13. It was also stated that in the interregnum, the
acquisition proceedings had been initiated by the State for
the purpose of acquiring the suit properties for the benefit
of the Society, but the acquisition proceedings were
challenged and the matter went up to the Hon'ble
Supreme Court, wherein the acquisition proceedings that
had been initiated came to be quashed, with a direction to
restore the possession back to the land owners.
14. It was stated that pursuant to the order of the
Hon'ble Supreme Court, though the land owners took
formal possession of the suit properties, the de facto
possession continued to be with the Society and the
Society, in turn, had proceeded to put the allottees in
possession of the sites formed in the suit properties. It
was stated that the landowners, after having taken formal
possession, allowed the Society to be in possession and
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also entered into a Deed called 'Declaration-cum-
Ratification' on 14.12.2000 and under this deed, the
Society was authorised to carry out the acts which had
been permitted earlier, and the acts and deeds that had
already been done, stood ratified.
15. It was, thus, stated that the Society had acquired not
only the ownership, but also the lawful possession and it
had also acted upon the Power of Attorney that had been
executed by the land owners in its favour.
16. It was also stated that independent of the order
passed by the Hon'ble Supreme Court, the Society had
acquired rights from the land-owners over the suit
properties and their lawful possession continued. It was
stated that since they had acquired right, title and interest
over the suit properties and they had also executed sale
deeds in favour of its members who had, in turn, gotten
the khata changed to their respective names, and some of
them had also put-up construction, it was clear that they
were the owners of the land.
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17. It was stated that the Society had acquired right,
title and interest over the suit properties independent of
the acquisition proceedings which had been quashed by
the Hon'ble Supreme Court. It was stated that the
members of the Society, in whose favour the sites have
been allotted and sold, had, in turn, acquired the right,
title and interest, including possession over the respective
sites, and it was not only the Society that had acquired
right, title and interest, but also its members.
18. It was stated that the sale deeds executed by the
Society in favour of its members were not only legal and
valid but also binding on the original owners of the lands.
It was also stated that the suit lands had already been
converted and they were no longer agriculture lands. It
was stated that the landowners, taking undue advantage
of the situation despite receiving the full consideration and
the additional consideration and after ratifying their
agreements, were interfering with their possession and
hence, the suit was being filed.
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19. Thus, a plain reading of the plaint averments indicate
that the lands had been agreed to be purchased by the
Society under the agreements of sale of the years 1984,
1985 and 1992, and the State had also proceeded to
initiate acquisition proceedings of these very lands but the
acquisition proceedings had been quashed and
notwithstanding the quashing of the acquisition
proceedings, the Society had independently acquired title
over the suit properties on the basis of a deed called
Declaration-cum-Ratification Deed executed on
14.12.2000. Thus, in essence, the Society was claiming to
have acquired title under unregistered agreements of sale,
an unregistered power of attorney and an unregistered
Declaration-cum-Ratification Deed and on this basis, they
were seeking a declaration that they were the owners of
the lands from the Civil Court.
20. The Society, in its plaint, categorically admitted that
the acquisition proceedings had been quashed, but
nevertheless on the basis of the agreements, it claimed
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that it had acquired rights, and on the basis of this right, it
had proceeded to sell the properties to its allottees. To
put it in simple terms, though the Society admitted that it
had sold the sites formed on the suit properties to its
members, it nevertheless sought a declaration that they
were the owners of the properties in the suit.
21. The matter was listed on the 12.08.2002, on which
date the matter was adjourned to 14.08.2002 for filing
objections by the Caveator. The matter was, thereafter,
adjourned to 20.08.2002, 09.09.2002 and 19.10.2002.
Though the matter was adjourned to 19.10.2002, at the
request of the parties, the matter was preponed to
04.10.2002 and a joint memo was filed. The joint memo
reads as follows:
"JOINT MEMO UNDER ORDER 23 RULE 3 C.P.C
Both the plaintiff and the defendants submit as
follows:-
1. That the Plaintiff society has filed a suit
seeking a decree for declaration that
the society has acquired valid right,
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title and interest over the suit schedule
land and also for permanent injunction.
2. The defendants had filed caveat petition
and the defendants had out in
appearance after service of plaint copy,
I.A., and Affidavit.
3. At the intervention of well wishers of
both the parties, both the parties have
agreed for settlement on the following
terms and conditions.
4. That there shall be a decree in favour of
the plaintiff as prayed for.
5. That the defendants shall not have any
objection for change of khata in respect
of suit schedule property in favour of
plaintiff Society and also in favour of its
members who have purchased the sites
formed in the suit schedule land.
6. That the defendants have no manner of
right, title or interest including
possession over the suit schedule land.
7. That the defendants shall not execute
any kind of agreement or documents
regarding the sale, transfer of the suit
schedule land or any portion thereof in
favour of any other person.
8. That the plaintiff and its members who
have purchased the sites in the suit
schedule land shall be free to use, enjoy
and deal with the suit schedule land and
the sites as the case may be and the
defendants shall not have any manner
of objection for the same.
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9. Both the parties shall bear their own
cost."
22. The Court took the Joint Memo on record, but since
the parties were not present, the matter was adjourned to
11.10.2002 for "orders". On 11.10.2002, the matter was
adjourned to 30.10.2002 and once again, adjourned to
20.11.2002.
23. On 20.11.2002, the Trial Court proceeded to
question Sri.Shankar G. Beleri, the President of the
Society. The entire record of the proceedings conducted on
20.11.2002, would be relevant and the same reads as
follows:
"20-11-2002
Plaintiff- HK
Defendant - Absent
Question
Or
Orders
Name: Shankar G.Beleri
President of Plaintiff
M/s.REMCO (BHEL) House
Building Co-operative Society Ltd.,
Age: 45 years
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TO COURT QUESTIONS:
I have no idea of the payment of Court
Fee made on the plaint.
2. The suit land measures 1 acre 35
guntas and 27-1/2 guntas.
3. When the Power of Attorney was
executed by defendants 1, 2 and 3 on
28-6-86, we had given Rs.60,000/- per
acre. The land totally measures 1 acre 1
guntas. When the agreement of sale
was entered on 29-4-84 we had agreed
to purchase at Rs.60,000/-.
4. In 1992 we made additional payment to
the defendants at Rs.30,000/- per acre.
After such payment for development
and formation of layout, they made an
agreement. For this agreement, I state,
it was a relinquishment of the rights.
5. After the compromise petition, we have
paid the advance sum of Rs.1,05,000/-.
The plaintiff stated this answer after
pausing for 10 to 20 seconds.
6. In Schedule A and Schedule B lands,
totally we have formed 30 or 32 sites,
the maximum sites may be 35 sites.
7. The General Power of Attorney executed
by the defendant P.T.Sadashivaiah,
Smt.Parvathamma and N.Nanjunda, is
with my advocate.
8. After the Supreme Court order is
passed, we secured the landlords again.
They entered into a fresh agreement,
based upon the earlier agreements dt:
29-4-84 and 15-3-92. After the
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Supreme Court order, a fresh
agreement was entered into in a sum of
Rs.1,05,000/- for both the suit lands.
9. Both the suit lands are converted into
non-agricultural.
10. The above record is made in the
presence of the advocate for the
plaintiff Sri.K.Srinivas for plaintiff's
advocate, under Order 23 Rule 1 of CPC
read with Order 10 Rule 2 of CPC. In
view of the implications, I pass the
following:
ORDER
The Court fee as paid on the plaint is
totally insufficient, which has to be
recovered having regard to the market
value of the subject matter.
Prima-facie, the suit itself is barred by
limitation and hence the question of
limitation also requires to be
determined. Because, unless a suit is
maintainable, being in time, no
compromise petition can be recorded.
The plaintiff is directed to produce the
order passed by the Hon'ble Supreme
Court referred to in para 6 of the plaint
and also produce the declaration and
agreement dt: 14.12.2000 referred to in
para 6 of the plaint and also the original
General Power of Attorney executed by
the defendants in favour of the
plaintiffs.
After such compliance, the Court will
pass further orders on the compromise
petition.
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For compliance, by 10-12-2002.
(Dictated to the Judgment Writer in
open Court, transcript and Computer
printout taken thereof is corrected and
signed by me on this the 20th day of
November 2022).
Sd/-
(Narendrakumar Gunaki)
24th A.C.C.J., Bangalore
24. As could be seen from this order, the Court observed
that the Court Fee paid was insufficient and more
importantly, the Court, prima facie, felt that the suit itself
was barred by limitation and the question of limitation was
required to be determined.
25. It was specifically observed that unless the suit was
maintainable and was in time, no Compromise Petition
could be recorded.
26. The Court also directed the Society to produce the
order passed by the Hon'ble Supreme Court which was
referred to in paragraph (6) of the plaint and also to
produce the Declaration-cum-Ratification Deed dated
14.12.2000, which was also referred to in the plaint, apart
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from the original General Power of Attorney executed by
the land-owners. It was ordered that after such
compliance, the Court would pass further orders on the
compromise petition.
27. It is therefore clear that the Court had serious
misgivings about the entire manner in which the matter
was dealt with. The matter was thereafter adjourned for
compliance on 10.12.2002, 13.03.2003, 30.05.2003,
30.06.2003, 04.07.2003 and 14.07.2003, on which day, a
receipt was produced for having paid a sum of Rs.3,268/-
towards Court Fees.
28. The Court proceeded to pass the following order on
14.07.2003:
"14-7-2003
Petitioner-HK
Defendant - Absent
For compliance as per
orders dated: 20.11.2002
Or
For Rejection of plaint
Memo along with a receipt is
filed for payment of Court fees
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of Rs.3,268/- on 14.07.2003.
Order
A receipt is produced for having credited
Rs.3,268/- towards court fee. In the memo it is
stated that the suit is valued at Rs.49,000/- under
section (c) of the K.C.F. & S.V.Act taking the
market value into consideration at Rs.98,000/- and
also for permanent injunction under section 26(c).
2. Originally this suit is filed on payment of
court fee of Rs.50/-.
With regard to the insufficiency of the court
fee the plaintiff was examined under Order 10 of
CPC on 20-11-2002 and based on his examination
the value of the agreement entered into after the
Supreme Court decision is held as Rs.1,05,500/- for
both the suit claim. It was ordered to pay the court
fee by 10-12-2002, besides the plaintiff to produce
the Supreme Court order referred to in para 6 of
the plaint and also produce the declaration and
agreement dt: 14-12-2000. From the order sheet it
is seen that though the matter was adjourned on
10-12-2002, 13-3-2003, 30-5-2003, 30-6-2003, 4-
7-2003 for compliance the same has not been
complied. But only today the receipt for Rs.3,268/-
is produced. As per the order dt: 20-11-2002 the
Plaintiff is liable to pay Court fees of Rs.6,975/-.
However, the plaintiff has paid Court Fee of only
Rs.3,318/- only. Besides the other direction in the
said order is not complied with. In the
circumstances, I pass the following:
Order
The Plaint is rejected for under
valuation.
Consequently the compromise
petition stands rejected.
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The order dt: 20-11-2002 shall form
part of this order.
No costs. Consign the record. Draw
the decree."
29. As could be seen from this order, the Court noticed
that the Court Fee paid was insufficient and its earlier
direction to produce the order of the Hon'ble Supreme
Court, the Declaration Deed dated 14.12.2000 and the
original General Power of Attorney, had not been complied
with and the Trial Court was, therefore, proceeding to
reject the plaint and consequently the Compromise
Petition also.
30. On the same day i.e., on 14.07.2003, an application
was made at 5:00 p.m. to recall the order, but this
application was rejected by the Trial Court.
31. On 18.09.2008 i.e., after more than five years, this
order rejecting the plaint on 14.07.2003 was challenged
by filing a First Appeal in RFA No.1053 of 2008.
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32. Interestingly, on 16.09.2008, two days before the
appeal was filed, a Caveat Petition C.P. No.854/2008 was
also filed by the GPA holder i.e., K.Bharat Kumar, the
Secretary of the Society. Interestingly, this caveat petition
also came to be filed on 16.09.2008 i.e., five years after
the plaint was rejected on 14.07.2003 and two days
before the appeal was filed on 18.09.2008.
33. The appeal was taken up for consideration on
18.11.2008 and was rejected. However, before the
autograph could be signed, a memo was filed by the
appellants' counsel to post the matter 'For being spoken
to' on the ground that the deficit court fee as noted by the
office had already been furnished and a memo to that
effect has also been filled in the office on the same day.
Since the deficit Court fee had been paid, the office
objections were held to be complied with and the order
dated 18.11.2008 rejecting the appeal for non-payment of
deficit Court fee was recalled.
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34. The appeal was thereafter taken up for consideration
on 07.01.2009 and on that day, the delay of 1801 days in
filing the appeal was condoned and the following Judgment
was rendered:
"Judgment
Heard on IA 2 for condonation of delay of 1801
days in filing the appeal. Delay condoned.
As per the submission made by the
appellant's counsel which is also conceded by the
respondents' counsel, the matter was set in for a
compromise at the instance of both the parties.
When the matter came up for consideration
regarding payment of court fee, although half the
court fee is said to have been paid as required, yet
the Trial Court has dismissed the suit on technical
grounds without allowing the parties to enter into a
compromise.
During pendency of the matter, if the parties
are ready to compromise then necessarily,
payment of court fee would be half of the court fee
that is payable in a suit for declaration and
injunction and not the full court fee as the matter
would be disposed of by way of compromise and
not on merits of the case.
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The observation made in the order dated
20.11.2002 is the plaintiff is liable to pay the court
fee of Rs.6,975/-. However, since the plaintiff has
paid only Rs.3,318/- the suit came to be
dismissed. It is for the trial court to ascertain the
market value of the property either on the basis of
the case advanced by the plaintiff or if it entertains
a doubt, by some other source. After so
ascertaining, the trial court ought to have allowed
certain time to the plaintiff to pay the court fee if
excess court fee is to be paid.
Stating that sufficient court fee has not been
paid, without taking into consideration that only
50% of the court fee is to be paid in case of
compromise and not the entire court fee, the trial
court has rejected the plaint which is erroneous.
In that view of the matter, appeal is allowed.
Order of the trial court dated 14.7.2003 is set
aside. Matter is remitted back to the trial court for
disposal in accordance with law. When the parties
have expressed that they are ready to compromise
the matter, at the most, it is for the trial court to
insist for payment of half the court fee. If any
doubt is entertained as to the valuation made, that
can be ascertained by summary enquiry and direct
the parties to pay the same. Parties to appear
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before the trial court on 2nd February, 2009. No
costs."
35. It may also be stated here that on 30.09.2003, an
application was made for return of the unmarked
documents, and this application was allowed, and the
unmarked documents were directed to be returned by
order dated 30.09.2003.
36. Pursuant to the order of this Court, the matter was
once again taken up by the Trial Court and on 27.02.2009,
the parties were directed to be kept present on
02.03.2009. On 02.03.2009, the following order was
passed:
"02.03.2009
P--DRR/SS
D1 to 3--GSN
It is seen from the record that a petition U/O
23 Rule 3 is pending. When my predecessors was
conducting enquiry, the said predecessor raised
objections in respect of court fee and rejected the
plaint. The matter was taken to Hon'ble High Court
in RFA 1053/2008. The Hon'ble High Court allowed
the said RFA and the order dated 14.7.2003 passed
by this court was set aside and directed this court
to dispose the matter as per law.
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My learned predecessor directed the plaintiff
to pay court fee of Rs.6,975/-. The learned counsel
appearing for both the plaintiff and defendant
submit the plaintiff is ready to pay Rs.6,975/- since
the matter was compromised between the parties.
They are liable to pay court fee of Rs.3,438/- i.e.,
half of the court fee.
Heard perused the orders of my learned
predecessor and orders passed by the Hon'ble High
Court. Both the plaintiff and the defendant came to
this court by settling their lis amicably. At this
juncture sending them back by raising technical
questions does not look proper. After all the court
exist to dispense the justice. The learned counsels
already paid deficit court fee. Thus 50% of the
entire court fee is already deposited. Hence, I
proceed to pass the following:
ORDER
Both the plaintiff and the defendant are
permitted to enter into compromise.
At this juncture the learned counsel for
plaintiff and defendant submitted that the
compromise petition was already on record. Both
the plaintiff and the defendant and their respective
counsels present. The G.P.A. holder of defendant
one Sri K.Bharath Kumar filed an affidavit stating
that his advocate by name Dechamma Bopaiah left
this country and settled in abroad. Hence it is not
possible for him to get NOC from his previous
counsel. Therefore he pray to permit him to appoint
new counsel. Therefore he pray to permit him to
appoint new counsel. One Sri.Navin G.S. advocate
filed vakalath to defendant. The vakalath taken on
record.
- 26 -
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Both the plaintiff and GPA holder of defendant
personally present before this Court. This Court
personally enquired about terms of compromise
petition. Both the plaintiff and the defendant
personally submits that after going through the
terms of compromise petition with their own will
and free consent they agreed the terms and affix
their signature to the compromise petition.
Perused the compromise petition. The terms
mentioned in the compromise petition seems to be
legal. Hence, I proceed to pass the following order:
ORDER
The petition filed by the plaintiff and
defendant U/O 23 Rule 3 is allowed.
Plaintiff suit is decreed as per the
compromise petition.
Office is directed to draw the decree as
per the terms of compromise petition.
Both the plaintiff and defendant and their
respective counsels are directed to affix
their signatures on the order sheet.
Sd/- 02.03.2009
(R.J.Sathish Singh)
XXIV ACC & Sessions Judge
Bangalore"
37. Thus, the suit filed by the Society against the owners
represented by the General Power of Attorney holder i.e.,
the very Secretary of the Society, was decreed as prayed
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for and as a consequence, the Society came to be declared
as the owner of the suit properties.
38. It may be pertinent to state here that during the
interregnum, on 29.10.2004, P.D.Sadashivaiah and
S.Nanjunda--defendants 1 and 3 (Appellants 3 & 4 herein)
had sold the suit properties to one N.R.Nagaraj and
G.Ravindra Reddy--Appellants 1 and 2.
39. It may also be pertinent to state here that in the
year 2005, in a contempt petition filed against the Society,
the Society clearly admitted that the landowners with
whom they had entered into agreements of sale and also a
Deed of Declaration cum Ratification, had sold the suit
properties in favour of N.R. Nagaraj and G.V. Ravindra
Reddy for a consideration of Rs.15,00,000/- on
29.10.2004.
40. It may also be pertinent to state here that in the
year 2007, the landowners had also re-deposited the
compensation and possession was also redelivered to
- 28 -
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them by the Special Land Acquisition Officer. Thus, despite
being aware of the fact that properties had been
purchased by N.R.Nagaraj and G.V.Ravindra Reddy--i.e.,
appellants 1 and 2 in RFA No.1743 of 2013, the appeal
had been filed only against the erstwhile landowners who
had no subsisting interest in the properties and without
making the purchasers as parties.
41. On 15.06.2011, the landowners filed the instant
review petition seeking to review the order dated
07.01.2009 passed in R.F.A. No.1053 of 2008, in which
the order rejecting the plaint dated 14.07.2003 had been
challenged and same had been set aside and the matter
had been remanded to the Trial Court.
42. On 08.09.2011, notice of the review petition was
ordered on 24.01.2011, the delay of 860 days in filing the
review petition was also condoned.
43. On 06.11.2013, RFA No.1743 of 2013 (the present
appeal) was filed challenging the acceptance of the
- 29 -
NC: 2023:KHC:45622
Compromise decree by the Trial Court. This appeal
challenging the order dated 02.03.2009 accepting the
compromise, is a belated appeal and there is a delay of
about 1620 days in filing the appeal.
44. Both the appeal and the review petition have been
ordered to be heard together vide order dated 30.01.2023
passed in RFA No.1743 of 2013.
45. Both the Learned Counsel agreed that all the issues
involved in the appeal would be addressed together and
the same was recorded by the order dated 20.02.2023 (in
RFA No.1743 of 2013) and accordingly the delay in filing
the appeal, the merits of the appeal as well as the review
petition were are heard together.
46. Learned counsel appearing for the landowners and
the purchasers i.e., Sri.Sharath S.Gowda, contended that
this is a classic case of fraud being played on the court in
order to secure a decree which was by itself a nullity in the
eye of law and therefore, without even considering any
- 30 -
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technicalities or intricate questions of law, the appeal is
required to be allowed.
47. Learned counsel also contended that the appeal
cannot really be said to be barred by time since the
appellants were, in the strict sense, not parties in the suit.
He contended that since the compromise was accepted on
the basis of the statement of a General Power of Attorney
holder, who was, in fact, the employee of the Society and
in the absence of the appellants. It was also argued that
despite a specific direction, the original General Power of
Attorney was not produced, and that by itself, would
indicate that fraud had been played on the Court.
48. The learned counsel also states that the Society itself
had chosen to challenge the rejection of the plaint by filing
RFA No.1053 of 2008 after five years and since the delay
in that appeal was condoned, the delay in filing of this
appeal would also have to be condoned. The learned
counsel highlighted the fact that even in RFA No.1053 of
2008, the paid Secretary of the Society had once again
- 31 -
NC: 2023:KHC:45622
entered caveat just before the appeal was filed and he,
very curiously, did not oppose the delay and the same was
condoned by the Court.
49. He submitted that since the entire process of filing a
caveat just two days before the appeal was filed in respect
of an order which had been passed five years ago was a
clear and an apparent case of collusion, it was clear that
fraud had been played on the court and as a result, the
delay, if any, in filing this appeal should be condoned.
50. On the merits of the claim, learned counsel contends
that the law is well-settled that if a compromise was
accepted wrongly, the person aggrieved by the
compromise could either prefer an application before the
same Court or invoke the remedy of filing an appeal. He
submitted that the bar for filing an appeal in case of a
compromise decree would arise only when the parties to
the compromise accepted the fact that they had signed the
compromise petition and had agreed their participation in
the acceptance of the compromise. He submitted that this
- 32 -
NC: 2023:KHC:45622
was on the principle that "once parties agree for passing of
a decree by consent, they ought not to be permitted to
challenge the same". He submitted that since in the
instant case, the appellants herein never admitted, let
alone accept the fact that a compromise petition was filed,
the decisions relied upon the learned Senior Counsel
appearing for the Society could be of no avail.
51. He submitted that all the decisions relied upon by the
learned Senior Counsel were cases in which the parties did
not dispute the execution of the compromise and its
presentation before the Court, whereas in the present
case, the appellants' clear stand was that they never ever
signed the compromise or presented it before the Court.
52. Learned Senior Counsel Sri. D.R. Ravishankar,
appearing for the Society contended that the principal
reason put forth in the appeal was that the compromise
decree was obtained behind the back of the appellants and
they were unaware of the compromise until June 2013
when they visited the Bruhat Bengaluru Mahanagara Palike
- 33 -
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office to inquire about the Khata. It is contended that the
appellants had admittedly filed the review in the month of
June 2011 seeking review of the order dated 07.01.2009
passed in RFA No.1053 of 2008 and, by that time, the
compromise had already been accepted by the Trial Court
on 02.03.2009 and therefore, the appellants were guilty of
making a false statement.
53. Learned Senior Counsel submitted that the Review
Petition was filed on 15.06.2011, by which time the Trial
Court pursuant to the order of this Court passed in RFA
No.1053 of 2008 had accepted the compromise on
02.03.2009 and it was, therefore, clear that the appellants
were aware of the compromise decree being accepted.
54. Learned counsel submitted that in the affidavit
seeking condonation of delay in filing the review petition
(which had been filed seeking to review the order passed
in RFA No.1053 of 2008), it was stated that the appellants
became aware of the decree on 10.03.2011, when the
officials of the Society came near the suit property and
- 34 -
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threatened to dispossess them and also disclosed that
they had obtained a decree in their favour in O.S. No.5471
of 2002. This averment thereby indicated that they were
aware of the decree in June 2011 itself and yet this appeal
was filed two years thereafter, on 06.11.2013. He,
therefore, contended that there was absolutely no
justification to condone the delay of 860 days in filing the
review petition.
55. Learned Senior counsel also addressed the Court on
merits of the claim. He contended that the appeal had
been filed challenging the order accepting the compromise
petition, which had been filed under Order XXIII Rule 3 of
CPC and since there is indisputably a statutory bar to
prefer an appeal against the acceptance of the
compromise petition, the present appeal was incompetent.
56. Learned Senior counsel also contended that there
were several decisions of the Hon'ble Supreme Court
which clearly bar the filing of an appeal against the
acceptance of a compromise petition and the
- 35 -
NC: 2023:KHC:45622
consequential drawing up of a compromise decree and
therefore, the appeal ought to be rejected as not
maintainable. He contended that the appellants, having
not chosen to approach the very same Court which had
accepted the compromise petition, were estopped from
challenging the validity of the compromise decree.
57. Learned Senior counsel also contended that the
execution of the General Power of Attorney and the
execution of the Declaration-cum-Ratification deed was
not at all in dispute and the land-owners by executing this
document fundamentally accepted all the obligations that
they had incurred, such as, executing the agreement of
sale, General Power of Attorney and the Trial Court had
committed no error in accepting the compromise petition,
which basically affirmed their conduct earlier.
58. Learned Senior counsel sought to contend that the
Society had paid large sums of money and had also
executed the sale deeds and in light of these indisputable
- 36 -
NC: 2023:KHC:45622
facts, the compromise decree passed by the Trial Court
could not be questioned by the appellants.
59. The Learned Senior counsel also sought to contend
that the Society was a party to the suits and also the writ
petition that had been filed challenging the cancellation of
Khata by Bruhat Bengaluru Mahanagara Palike (BBMP),
which were litigations of the year 2010 and in those
proceedings, the acceptance of the compromise petition
had been clearly put forth and despite this, no application
was filed for setting aside the compromise decree. He
therefore submitted that there was absolutely no
justification to entertain the present appeal.
60. The learned counsel submitted that this Court in writ
proceedings had reserved liberty to the petitioner--Society
to approach the revenue authorities regarding cancellation
of the Khata, as against which a writ appeal was filed,
which was also dismissed and a clarification application
was filed which is still pending. He submitted that since
the question of Khata was still pending adjudication before
- 37 -
NC: 2023:KHC:45622
the Hon'ble Supreme Court as well as before this Court (by
the application for clarification was filed), it would be
inappropriate to entertain this appeal and the appellants
should be relegated to the remedy provided under Order
XLIII Rule 1-A of CPC.
61. In the light of the arguments advanced, the points
that arise for consideration in this appeal are:
a. Whether sufficient cause is made
out to condone the delay in filing
the appeal and
b. Whether the appellants are
entitled to prefer an appeal
against the acceptance of the
compromise petition? and if so,
whether the Trial Court was
justified in accepting the
compromise petition given the
facts and circumstances leading
to the filing of the suit and the
compromise petition?
- 38 -
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62. As already narrated above, the following facts are
not in dispute:
63. On 09.08.2002, the suit was instituted by the Society
seeking for declaration and four days before filing of the
suit, a caveat petition was filed on the strength of a
General Power of Attorney said to have been executed by
the land-owners in favour of K.Bharath Kumar, the
Secretary of the Society.
64. After the matter was adjourned from time to time
and ultimately, to 19.10.2002 for filing of the objections,
the matter was preponed to 04.10.2002 and a joint memo
was filed. This joint memo was signed by the General
Power of Attorney holder of the land-owners i.e., the
Secretary of the Society and the President of the Society.
65. Under the terms of the joint memo, the Secretary of
the Society i.e., the General Power of Attorney holder of
the owners fundamentally conceded for the suit to be
decreed as prayed for and also stated that they had no
- 39 -
NC: 2023:KHC:45622
objections for change of Khata and they had no manner of
right, title, interest including for handing the possession,
over the suit property and the allottees could continue to
utilise the sites which had been allotted by the Society.
66. On 04.10.2002, the joint memo was taken on record,
but the Court did not accept it and posted the case for
questions or orders. On 20.11.2002, the Court proceeded
to question the President of the Society and after hearing
him, the Trial Court was prima facie of the view that the
suit was not maintainable and directed the plaintiff to
produce the declaration, the agreement and also the
original General Power of Attorney, apart from the orders
of the Hon'ble Supreme Court which had been referred to
in the plaint.
67. Despite the matter being adjourned on more than
one occasion, the direction issued by the Court to produce
the documents, were not complied with and only a portion
of the Court fee was paid. This resulted in the Court to
reject the plaint on 14.07.2003.
- 40 -
NC: 2023:KHC:45622
68. Thus, the joint memo which was initially filed was not
accepted by the Court. The direction to produce the
original General Power of Attorney so also the declaration
and the agreement were also not complied with. It is,
therefore, clear that the compromise which was put forth
before the Court under Order XXIII Rule 3 of CPC was
initially not accepted by the Trial Court and the Trial Court,
in fact, proceeded to reject the plaint.
69. Nearly five years thereafter on 18.09.2008, RFA
No.1053 of 2008 was filed by the Society challenging the
rejection of the plaint. Just a few days before filing of the
appeal, a caveat petition was filed by the very same
General Power of Attorney holder of the land-owners i.e.,
the Secretary of the Society. In the proceedings before
this Court, no objection was put forth to condone the delay
and this Court proceeded to condone the delay of 1801
days and remanded the matter on 07.01.2009.
70. Submissions were made that the parties were ready
to compromise the suit and therefore, the payment of half
- 41 -
NC: 2023:KHC:45622
of the Court fee was sufficient and the observations made
by the Court that the full court fees of Rs.6,975/- was to
be paid was incorrect.
71. This Court took the view that the Trial Court ought to
have ascertained the market value of the property on the
basis of the case advanced by the plaintiff or if it had
entertained a doubt, it could have ascertained the market
value and it should have granted certain time to the
plaintiff to pay the required court fee. This Court
accordingly concluded that the rejection of the plaint by
the Trial Court on the ground that only 50% of the Court
fee paid was insufficient and therefore, this Court
proceeded to set aside the order rejecting the plaint and
remitted the matter back to the Trial Court for disposal in
accordance with law.
72. This Court made it clear that the if the parties had
expressed a desire to settle the matter, it was open for the
Trial Court to insist for payment of half of the court fees; if
it had entertained a doubt regarding the valuation, it could
- 42 -
NC: 2023:KHC:45622
ascertain the same by holding a summary enquiry and
thereafter direct the parties to pay the same.
73. Thus, the only question that was argued and
considered by this Court was regarding the sufficiency of
the court fees that had been paid and there was no
determination regarding the acceptance or otherwise of
the compromise petition.
74. Pursuant to this order, the Trial Court proceeded to
conclude that the parties had come forward to settle the
lis amicably and it would not be appropriate to send them
back by raising a technical question and it therefore
proceeded to accept the compromise petition which had
already been on record.
75. The Trial Court thereafter proceeded to inquire about
the terms of the compromise petition and since both the
parties stated that they had agreed to the compromise
petition on their own will, the same was accepted.
- 43 -
NC: 2023:KHC:45622
76. It is not in dispute that when the compromise
petition was accepted, the earlier order dated 20.11.2002
directing the plaintiff to produce the order passed by the
Hon'ble Supreme Court, the declaration cum agreement
deed dated 14.12.2000 and also the original General
Power of Attorney said to have been executed by the
defendants (land-owners) in favour of the Society were
not complied with.
77. The Trial Court acted upon the joint memo that had
been filed and merely proceeded to observe that the same
had been accepted and it had directed the drawing up of
the decree in terms of the compromise petition. It is
therefore clear that this was a compromise petition which
was not signed by the defendants, but it was a
compromise petition which had been signed by the alleged
General Power of Attorney holder of the landowners, who
incidentally happened to be an employee of the plaintiff-
Society.
- 44 -
NC: 2023:KHC:45622
78. Assuming that a party can appoint an agent to
represent him, nevertheless, keeping in mind that the
General Power of Attorney holder was admittedly the
Secretary of the Society, it can be unhesitatingly held that
this was a collusive compromise petition. This becomes
obvious when it is noticed that under the terms of the
compromise petition, the paid Secretary on behalf of the
land-owners conceded that a decree as prayed for be
granted in favour of the Society i.e., the Society be
declared as the absolute owner of the suit properties.
79. It is not in dispute that there was no registered
document executed by the owners conveying the title in
favour of the Society. The Society, basically, contended
that there had been agreements by which the owners had
agreed to sell the property to the Society and certain
General Power of Attornies were also executed in their
favour. It is also the admitted case of the Society in the
plaint itself that the State had initiated acquisition
- 45 -
NC: 2023:KHC:45622
proceedings in favour of the Society and the same had
also been quashed by the Hon'ble Supreme Court.
80. Interestingly, even after the quashing of the
acquisition proceedings, it was the case of the Society that
the landowners had executed a declaration-cum-
ratification deed on 14.12.2000 whereby the owners had
ratified all the documents that they had entered into prior
to the acquisition and the Society had thereby acquired
ownership of the suit properties. This declaration-cum-
ratification deed was admittedly an unregistered
document, and it is on the basis of this unregistered
document, the Society was claiming title.
81. It may also be pertinent to notice here that as on the
date of this declaration-cum-ratification deed has been
executed, the Society had admittedly, already executed
sale deeds in favour of its members and it was the plea of
the Society that their acquisition of title was independent
of the order of the Apex Court which had quashed the
acquisition notifications issued in its favour.
- 46 -
NC: 2023:KHC:45622
82. It is therefore clear that the Society was essentially
seeking for a declaration that they were the owners of the
Society on the basis of an unregistered declaration-cum-
ratification deed, in which it was also stated that they had
already sold the sites they have formed on the suit
properties in favour of its members.
83. It is also clear that though the Society had clearly
stated that they had executed sale deeds in favour of its
members, the Society nevertheless sought for a
declaration that they were the owners of the property.
The Trial Court, by acceptance of this compromise petition,
has fundamentally declared that the Society was the
owner of the suit properties on the basis of an
unregistered document, notwithstanding the admitted fact
that even according to the Society, it had already been
conveyed title to its members and thereby had no
subsisting title over the suit properties.
84. Since, admittedly, the landowners were not the
parties to this compromise and the original General Power
- 47 -
NC: 2023:KHC:45622
of Attorney, though directed to be produced, was never
produced, in reality, the Society basically obtained a
decree of declaration on the basis of a concession given by
its own Secretary, who was acting on the basis of an
alleged General Power of Attorney executed by the
owners.
85. The Trial Court, as noticed above, did not initially
accept this compromise petition, and had proceeded to
reject the plaint itself. For five long years, the Society did
not challenge the rejection of the plaint and it chose to file
an appeal only in the year 2008. Interestingly, the General
Power of Attorney holder i.e., the Secretary of the Society,
preferred a caveat just two days before filing of the
appeal. This particular conduct of the Society and its
Secretary, by itself, clearly exposes the blatant collusion
between the two.
86. On 02.03.2009, as stated above, the compromise
petition was accepted and two years thereafter, a review
was filed. The grounds raised in the review are that the
- 48 -
NC: 2023:KHC:45622
landowners were not parties to the compromise petition
and when orders passed by this Court in R.F.A. No.1053 of
2008, fraud had been played on this Court and therefore,
the order was required to be reviewed. Thus, in essence
about two years after the acceptance of the compromise,
the review petition was filed.
87. The delay in filing RFA No.1053 of 2008 was also
condoned by this Court on 07.01.2009.
88. Thus, in the petition seeking for review of the order
passed by this Court in RFA No.1053 of 2008, the cause
shown for the delay in filing the petition was accepted and
the delay was condoned.
89. Since, ultimately the compromise petition was
accepted pursuant to the order passed in RFA No.1053 of
2008, the delay, if any, in filing the appeal against the
acceptance of the compromise, would be superfluous. This
is because if the order passed in RFA No.1053 of 2008 is
- 49 -
NC: 2023:KHC:45622
to be reviewed, then automatically the acceptance of the
compromise would also stand obliterated.
90. Therefore, the question of delay would not be really
of any significance, insofar as the appeal filed challenging
the acceptance of the compromise petition.
91. Yet another important factor to be noticed that this is
a case in which an unscrupulous litigant has brazenly tried
to abuse the process of the Court, by acting in a
fraudulent manner.
92. It is well-settled position of law that fraud unravels
everything, and no order of a Court can stand if it is
obtained by fraud.
93. Since, the compromise decree itself was obtained by
the Society by utilising its own Secretary to appear on
behalf of the landowners and concede for grant of a decree
of ownership in its favor, it is clear that the Society was
basically playing fraud on the landowners and was
- 50 -
NC: 2023:KHC:45622
essentially utilizing the process of the Court to deprive the
land-owners of their title over the suit properties.
94. The manner in which the Society filed the suit and
obtained a decree, is essentially, a situation where a
plaintiff files a suit against himself and thereafter concedes
that the plaintiff was entitled to a decree. In reality, the
suit was filed by the Society against itself, since the
defendant was being represented by its very own paid
Secretary. This employee, conveniently, conceded for
decree being passed in its favour by executing a
compromise petition on the basis of the GPA.
95. This kind of blatant fraud that was practiced on the
Court fundamentally disentitles the Society from seeking
any benefits under the decree. As the conduct of the
Society leading upto the filing of the compromise petition
and its acceptance is vitiated by fraud, the argument that
such a fraudulent decree cannot be disturbed by
condoning the delay, cannot be accepted at all and the
same is rejected.
- 51 -
NC: 2023:KHC:45622
96. The delay of 1620 days in filing the present appeal is
therefore condoned.
97. On the merits of the claim, it is noticed that the
Society instituted a suit seeking for a declaration that it
had acquired valid right, title and interest over the suit
properties. As per the plaint averments, the basis for the
claim of ownership was an agreement of sale dated
29.04.1984 and a General Power of Attorney dated
28.06.1986, which was stated to have been executed after
the entire sale consideration was paid to the landowners.
98. A further basis for this claim, was the Society had
entered into agreements of sale dated 27.02.1985 and
15.03.1992 whereunder additional payments were made
and according to the Society, by virtue of these
agreements of sale, the land owners relinquished all the
right, title and interest over the suit properties.
99. From these plaint averments, it is clear that the
Society based its entire claim on the basis of agreements
- 52 -
NC: 2023:KHC:45622
of sale dated 29.04.1984, General Power of Attorney dated
28.06.1986 and agreements of sale dated 27.02.1985 and
15.03.1992. Admittedly, all these agreements are
unregistered documents, and they are mere agreements
under which no interest was created in the suit properties.
Thus, the question of either the Society acquiring title or
the landowners relinquishing their rights under these
unregistered documents in favor of the Society would
never arise. As a consequence, the Society cannot base its
claim for title on these documents and it would not also be
entitled to seek for a declaration that it has acquired title
under these agreements.
100. It is also not in dispute that as per the plaint
averments that the very land which are the subject matter
of the above-mentioned agreements were also notified for
acquisition. It is admitted in the plaint itself that the
acquisition was quashed by the Hon'ble Supreme Court
with a direction to restore the possession back to the
landowners. These averments therefore clearly indicate
- 53 -
NC: 2023:KHC:45622
that the title, if any, which had been passed onto the
Society by virtue of the acquisition, also stood nullified and
as a consequence, the title stood restored to the land-
owners on the direction to restore their possession
confirms the fact that the Society also could not retain
possession.
101. The Society also admits that the landowners did take
formal possession of the land but the de-facto possession
continued with them. It is also contended that the Society,
in turn, was allowed to be in possession of the sites and
the land owners allowed the Society to be in possession by
entering into an agreement called Declaration-cum-
Ratification Deed dated 14.12.2000. It is also the case of
the Society in the plaint that, under this Declaration-cum-
Ratification Deed dated 14.12.2000, the Society was
authorised to carry on the acts conferred earlier to it and
the acts and deeds already done by the Society were
ratified.
- 54 -
NC: 2023:KHC:45622
102. Admittedly, this Declaration-cum-Ratification Deed
dated 14.12.2000 is also an unregistered document. As
already stated above, no right, title or interest over the
immoveable property can be transferred under an
unregistered document. Therefore, this unregistered
Declaration-cum-Ratification Deed dated 14.12.2000
cannot form the basis for the claim of the Society for a
declaration to be given that it had title over the suit
property. In the light of the admitted averments in the
plaint, that the Society had acquired title under
unregistered agreements, it is clear that there was
absolutely no basis for the claim that the Society had
acquired the title over the suit properties.
103. The fact that the Society admitted in its plaint that
pursuant to the order of the Hon'ble Supreme Court, the
possession was also handed over to them would also
indicate that the Society was not in possession of the said
lands.
- 55 -
NC: 2023:KHC:45622
104. The Landowners have filed several documents along
with a memo in this appeal. One such document is the
communication dated 28.08.1997, which reads as follows:
"PÀæ : J¯ïJ¹ : 78 : 87-88
«±ÉõÀ ¸Áé¢üãÁ¢üPÁjUÀ¼ÀªÀgÀ PÀbÉÃj,
«±ÉéñÀégÀAiÀÄå PÉÃAzÀæ, 3£Éà ªÀĺÀr,
¨ÉAUÀ¼Æ À gÀÄ, ¢£ÁAPÀ:28-08-1997.
C¢üPÈÀ vÀ YÁ¥À£À ¥ÀvæÀ
«µÀAiÀÄ: ¨sÁgÀvÀ ¸ÀªÇÉ ÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ J¸ï.J¯ï.¦.£ÀA:3011-
19:95 ¢£ÁAPÀ 21-2-95gÀAzÀÄ DVgÀĪÀ DzÉñÀzÀAvÉ
¨ÉAUÀ¼ÆÀ gÀÄ zÀQët vÁ®ÆèPÄÀ , ¥ÀlÖtUÉgÉ UÁæªÄÀ zÀ
¸À.£ÀA:24:1 gÀ°è 1-33 UÀÄAmÉ «¹ÛÃtð d«ÄãÀ£ÄÀ ß ¨sÆÀ
ªÀiÁ°ÃPÀjÃUÉ ©lÄÖPÆÉ qÀĪÀAvÉ
G¯ÉèÃR: 1. ¸ÀPÁðgÀzÀ ¥Àvæz
À À ¸ÀA.Dgï.r.107. sJPÀÆå©.89,
¢£ÁAPÀ 10-11-95 ªÀÄvÀÄÛ 10-11-96gÀ ªÉÄÃgÉUÉ,
2. ¸ÀPÁðgÀzÀ CAwªÀÄ C¢ü¸ÀÆZÀ£É PÀæ.Dgï.r.11. sJPÀÆå©.85
¢£ÁAPÀ 30.7.87.
¨sÁgÀvÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ J¸ï.J¯ï.¦.£ÀA:3011-19:95
¢£ÁAPÀ:21-02-95gÀAzÀÄ ¤ÃrzÀ wæð£ÀAvÉ gÉªÆ É Ìà (©.ºÉZï.E.J¯ï.)
UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀzÀ ¥ÀgÀªÁV ¨sÆ À ¸Áé¢üãÀUÆ
É ArgÀĪÀ
¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÄÀ ¥ÀlÖtUÉgÉ UÁæªÄÀ zÀ ¸À.£ÀA:24:1gÀ°è 0-13
UÀÄAmÉ d«ÄãÀÄ ªÀÄvÀÄÛ ¸À.£ÀA24:3gÀ°è 1-33 UÀÄAmÉ d«Ää£À ¥ÀæzÉñÀªÀ£ÄÀ ß
¨sÀÆ ªÀiÁ°ÃPÀgÁzÀ ²æà n.¸ÀzÁ²ªÀAiÀÄå ©£ï vÉÆÃlUÁAiÀÄå JA§ÄªÀgÄÀ
r.r.¸ÀA.599935 ¢£ÁAPÀ 8-8-97 gÀÆ.1,41,900-00 (MAzÀÄ ®PÀëzÀ
£À®ªÀvÀÆÛAzÀÄ ¸Á«gÀzÀ MA¨sÊÉ £ÀÆgÀÄ) ªÀiÁvÀæ r.r.AiÀÄ£ÀÄß ªÉʱÀå ¨ÁåAPï
D¥sï °«ÄmÉqï, Dgï.«. PÁ¯ÉÃeï D¥sï JAf¤AiÀÄjAUï, ¨ÉAUÀ¼Æ À gÀÄ-
59gÀ ¨ÁæAZï, ¨ÉAUÀ¼Æ À gÀÄgÀªÀjAzÀ ¥ÀqÉ¢gÀĪÀ F C¢üPÈÀ vÀ eÁÕ¥À£ÀªÅÀ
ªÀÄÄAzÉ £ÁåAiÀiÁ®AiÀÄzÀ ¸ÀPÁðgÀªÅÀ «¢ü¸À§ºÀÄzÁzÀ §rØ ªÀUÊÉ gÉ §UÉÎ
¤§AzsÀ£ÉUÉ M¼À¥ÀlÄÖ ¥ÀvæÀ ¤ÃqÀ¯ÁVzÉ.
¸À»/-30.08.97
«±ÉõÀ ¨sÆ À ¸Áé¢üãÁ¢üPÁjUÀ¼ÀÄ
¨ÉAUÀ¼Æ À gÀÄ f¯Éè, ¨ÉAUÀ¼ÆÀ gÀÄ
- 56 -
NC: 2023:KHC:45622
UÉ,
²æà n.¸ÀzÁ²ªÀAiÀÄå ©£ï vÉÆÃlUÀAiÀÄå
¥ÀlÖtUÉgÉ UÁæªÄÀ , PÉAUÉÃj ºÉÆç½,
¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ,
¥ÀæwAiÀÄ£ÀÄß:
1. «±ÉõÀ ¨sÀƸÁé¢üãÁ¢üPÁjUÀ¼ÄÀ , ¨ÉAUÀ¼Æ À gÀÄ f¯Éè gÀªÀgÀ ªÀiÁ»wUÁV,
2. vÀºÀ¹Ã¯ÁÝgï, ¨ÉAUÀ¼Æ À gÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉAUÀ¼ÆÀ gÀÄ gÀªÀgÀ
ªÀiÁ»wUÁV,
3. gɪÉÆÌà (©.ºÉZï.E.J¯ï.) UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ, ¸ÀA.304,
ªÀÄÄRå gÀ¸ÉÛ, gɪÆÉ Ìà ¯ÉÃOmï, ¨ÉAUÀ¼ÆÀ gÀÄ gÀªÀgÀ ªÀiÁ»wUÁV,
¸À»/-30.08.97
«±ÉõÀ ¨sÆÀ ¸Áé¢üãÁ¢üPÁjUÀ¼ÀÄ
¨ÉAUÀ¼Æ
À gÀÄ f¯Éè, ¨ÉAUÀ¼Æ
À gÀÄ"
105. The contents of this document indicate that the
landowners had deposited a sum of Rs. 1,41,000/- by way
of demand drafts pursuant to the order of the Supreme
Court and hence possession was to restored to them.
106. Another Communication dated 09.10.2002 addressed
by the Society in favour of the Principal Secretary of the
Revenue Department has been produced, which reads as
under:
"gÉAPÉÆà (©.ºÉZï.E.J¯ï.) UÀȺÀ ¤ªÀiÁðt ¸ÀºÀPÁgÀ ¸ÀAWÀ ¤AiÀÄ«ÄvÀ
Remo (BHEL) House Building Co-operative Society Ltd.
(Regd.No.B/ARBI/R.I.W.H.C.S/1640/69-70)
No.364, 5th Main, RPC (Remo) Layout, Vijayanagar, 2nd Stage
Bangalore -560 040
- 57 -
NC: 2023:KHC:45622
Ph:3357895
Our Ref.No. .....
Date:09.10.2002.
gÀªÀjU,É
ªÀiÁ£Àå ¥ÀæzsÁ£À PÁAiÀÄðzÀ²ðUÀ¼ÄÀ ,
PÀAzÁAiÀÄ E¯ÁSÉ, PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ ¸ÀaªÁ®AiÀÄ-2
qÁ:CA¨ÉÃqÀÌgï «¢ü
¨ÉAUÀ¼ÀÆgÀÄ-560 001.
ªÀiÁ£ÀågÉÃ,
«µÀAiÀÄ: ¨sÆ
À ¸Áé¢üãÀ £ÀqÀªÀ½PÉUÀ¼ÄÀ ¸ÀªÇÉ ðÃZÀÑ
£ÁåAiÀiÁ®AiÀÄzÀ J¸ï.J¯ï.¦. £ÀA.3011-
19:95gÀ DzÉñÀzÀAvÉ gÀzÁÝVgÀĪÀ §UÉÎ.
G¯ÉèÃR: PÀA.E.107, ¨sÆ À ¸Áé¨É 89
¢£ÁAPÀ: 30.09.2002
----------
ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, ¨ÉAUÀ¼Æ À gÀÄ zÀQët
vÁ®ÆèPÀÄ PÉAUÉÃj ºÉÆç½, ¥ÀlÖtUÉgÉ UÁæªÄÀ zÀ°è 58 JPÀgÉ 35
UÀÄAmÉ d«ÄãÀ£ÄÀ ß ¨sÆ À ¸Áé¢üãÀ E¯ÁSÉAiÀÄÄ ¸ÀPÁgÀzÀ CAwªÀÄ
C¢ü¸ÀÆZÀ£É £ÀA.Dgï.r.11, ¨sÆ À ¸Áé¨É 85, ¢£ÁAPÀ:30.07.1987
gÀ£ÀéAiÀÄ £ÀªÄÀ ä ¸ÀAWÀzÀ ¥ÀgÀªÁV ¨sÆ À ¸Áé¢üãÀ ¥Àr¹vÀÄÛ. DzÀgÉ,
¨sÁgÀvÀzÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀĪÀÅ J¸ï.J¯ï.¦.£ÀA.3011-
19:95, ¢£ÁAPÀ: 21-02-1995gÀAzÀÄ ¸ÀzÀjà ¨sÆ À ¸Áé¢üãÀ ¥ÀæQæAiÉÄ
PÀæªÀħzÀÞªÁV®èªÉAzÀÄ gÀzÄÀ Ý¥Àr¹. £ÀªÄÀ ä ¸ÀAWÀzÀ ¥ÀgÀ
¸Áé¢üãÀªÁVzÀÝ d«ÄãÀÄUÀ¼À£ÄÀ ß ¨sÆ
À ªÀiÁ°ÃPÀgÄÀ UÀ½UÉ
»A¢gÀÄV¸ÀĪÀAvÉ DzÉñÀ ¤ÃrvÀÄÛ.
¸ÀzÀjà ªÁådåzÀ°è ¸ÀAWÀªÅÀ PÀÆqÀ ¥ÀæwªÁ¢AiÀiVzÀÄÝ, F
DzÉñÀªÀ£ÀÄß C£ÀĵÁ×£ÀPÌÉ vÀgÄÀ ªÀ ºÉÆuÉ ¸ÀAWÀzÀ
ªÉÄðgÀĪÀÅzÀjAzÀ, £ÀªÄÀ ä ¸ÀAWÀªÅÀ AiÀiÁªÀÅzÉà zÀÄgÀÄzÉÝñÀ¢AzÀ
£ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀªÀ£ÁßUÀ°Ã CxÀªÁ ¸ÀPÁðgÀzÀ
¤zÉðñÀ£ÀªÀ£Áß°Ã G®èAX¹®èªÉAzÀÄ F PɼÀPÀAqÀAvÉ
¸ÀªÀÄeÁ¬Ä¶AiÀÄ£ÀÄß ¤ÃqÀ°aѸÄÀ vÉÛãÉ.
«±ÉõÀ ¨sÆÀ ¸Áé¢üãÁ¢üPÁjUÀ¼ÄÀ £ÁåAiÀiÁ®AiÀÄzÀ°è zÁªÉ
ºÀÆr®èzÀ J¯Áè ¨sÆ À ªÀiÁ°ÃPÀjUÀÄ ¸ÀºÀ £ÀA.J¯ï.J.¹.80:87-88
¢£ÁAPÀ 21-01-1997 gÀAzÀÄ w¼ÀĪÀ½PÉ ¥ÀvÀæªÀ£ÄÀ ß ¤Ãr
d«ÄãÀ£ÀÄß ¸Áé¢üãÀ ¥Àr¹PÉÆAqÀÄ vÉUÉzÄÀ PÉÆArzÀÝ ºÀtªÀ£ÄÀ ß
- 58 -
NC: 2023:KHC:45622
¨sÀÆ ªÀiÁ°ÃPÀjAzÀ r r ªÀÄÆ®PÀ »AzÀPÌÉ ¥ÀqÉzÄÀ ¨sÁgÀvÀzÀ
¸ÀªÉÇðÃZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ wæð£ÀAvÉ £ÀªÄÀ ä ¸ÀAWÀzÀ ¥ÀgÀªÁV
¨sÀÆ ¸Áé¢üãÀªÁVgÀĪÀ d«ÄãÀÄUÀ¼À£ÄÀ ß ¸ÀzÀjà ¨sÆ
À
ªÀiÁ°ÃPÀgÀÄUÀ½UÉ »AA¢gÀÄV¹ d«Ää£À ¥ÀÆtð MqÉvÀ£ÀªÀ£ÄÀ ß
¨sÀÆ ªÀiÁ°ÃPÀjUÀ½UÉ »A¢gÀÄV¹ d«Ää£À ¥ÀÆtð
MqÉvÀ£ÀªÀ£ÀÄß ¨sÆ
À ªÀiÁ°ÃPÀgÄÀ UÀ½UÉ FUÁUÀ¯Éà ¤ÃrgÀÄvÀÛzÉ. F
§UÉÎ £ÀA§A¢ü¹zÀ zÁR¯ÁwUÀ¼À£ÄÀ ß F ¥Àvæz À ÆÉ A¢UÉ vÀªÄÀ ä
CªÀUÁºÀ£ÉUÁV ®UÀwÛ¸À¯ÁVzÉ.
vÀzÀ£ÀAvÀgÀ, «±ÉõÀ ¨sÀÆ ¸Áé¢üãÁ¢üPÁjUÀ¼ÄÀ
£ÀAJ¯ï.J.¹.83:87-88 ¢£ÁAPÀ:07.08.1997gÀ C¢üPÈÀ vÀ YÁ¥À£À
¥ÀvÀæzÀ ¤zÉðñÀ£ÀzÀAvÉ J®è d«ÄãÀÄzÁgÀgÄÀ vÀªÄÀ ä vÀªÄÀ ä
d«ÄãÀÄUÀ¼À SÁvÉAiÀÄ£ÀÄß PÀAzÁAiÀÄ E¯ÁSÉAiÀÄ°è CªÀgÀªÀgÀ
ºÉ¸ÀjUÉ ªÀUÁðªÀt ªÀiÁr¹PÉÆAqÀÄ d«Ää£À MqÉvÀ£ÀªÀ£ÀÄß ¨sÆ
À
ªÀiÁ°ÃPÀgÀÄUÀ¼Éà ºÉÆA¢gÀÄvÁÛgÉ. F §UÉÎ ¸ÀA§A¢ü¹zÀ
zÁR¯ÁwUÀ¼À£ÄÀ ß F ¥Àvæz
À À dÆvÉ ®UÀwÛ¸À¯ÁVzÉ.
CzÀÝjAzÀ £ÀªÄÀ ä ¸ÀAWÀªÅÀ ¸ÀªÇÉ ðÃZÀÑ £ÁåAiÀiÁ®AiÀiÁzÀ
DzÉñÀªÀ£ÀÄß G®èAX¹®èªÉAzÀÄ w½¸À°aѸÄÀ vÉÛãÉ.
ªÀAzÀ£ÉUÀ¼Æ
É A¢UÉ,
vÀªÄÀ ä «±Áé¹,
DqÀ½vÀ ªÀÄAqÀ½AiÀÄ C¥Ààt ªÉÄÃgÉUÉ,
¸À»/-
CzsåÀ PÀëgÄÀ ."
107. As could be seen from this document, the Society
undertook to abide by the orders of the Supreme Court
and the directions issued by the State Government. The
Society has also acknowledged the fact that it had
obtained the amount deposited by the landowners before
the SLAO and had also restored possession of the
landowners. It has also stated unequivocally that it had
- 59 -
NC: 2023:KHC:45622
complied with the direction of the SLAO and the title of the
landowners had been restored and they were at liberty to
make out Khatas in their respective names.
108. Thus, as on 09.10.2002, the Society unequivocally
admitted that the title to the lands stood restored to the
landowners and that they had essentially complied with
the orders of the Apex Court. In this light of this
communication, the assertion that they acquired title over
the land by means of the Declaration cum ratification deed
dated 14.12.2000 would fall to the ground.
109. It is to be noticed that the Declaration cum
Ratification Deed was dated 14.12.2000 i.e., nearly two
years prior to the communication of the Society dated
09.10.2002 and by virtue of this communication, the
Society itself was declaring that it had no rights
whatsoever over the lands which had been notified in its
favour, which admittedly, included the suit properties. In
the light of this communication, the entire basis of the
Society's claim that it had title and therefor it was entitled
- 60 -
NC: 2023:KHC:45622
for a declaration from the Civil Court would stand
obliterated.
110. This communication, in fact, proves that the suit
which had been filed on 09.08.2002 contending that it was
still in possession and it still possessed title over the
property was a false claim.
111. It may also be stated here that the land-owners have
also produced Indemnity Bond dated 23.08.2004, in which
the Society has acknowledged that it had requested the
amount deposited by them towards land cost be refunded
to them and in that regard the Society was executing an
indemnity bond to receive the amount of Rs.36,21,794/-,
it had deposited.
112. The Indemnity Bond also contains a recital that the
Society agrees with the Government when there was no
dispute about the refund of the deposited amount, and it
also declares that it would honour any litigation that may
arise in respect of future litigation regarding the deposit.
- 61 -
NC: 2023:KHC:45622
This Indemnity Bond acknowledges the fact that the
Society has also taken back the amount it had deposited
towards the acquisition.
113. It is to be noticed here that after executing this
indemnity bond in the year 2004, the appeal in RFA
1053/2008 was preferred in the year 2008 challenging the
rejection of the plaint. This also indicates that the Society
was suppressing the fact that it had received the
compensation amounts and it continued to plead that it
had title over the properties and that the landowners had
agreed for the Society to enjoy the ownership over the
lands.
114. In my view, this reprehensible conduct of the Society
in suppressing material facts and using a General Power of
Attorney it had obtained from the land owners earlier to
abuse the process of the Court and obtain a decree
disentitles it from the grant of any relief. It is clear from
the above documents that the Society has repeated made
- 62 -
NC: 2023:KHC:45622
false statements deliberately with a view to secure a
decree and such an attempt cannot be permitted.
115. It may also be pertinent to state here that as per the
counter-affidavit dated 02.08.2006 filed by the Society
before the Hon'ble Supreme Court in Contempt Petition
Nos.224-26 of 2005, the President of the Society stated
that the landowners had concealed the material fact that
on 29.10.2004, a sale deed had been executed in respect
of the schedule property bearing Sy.No.24/1 to one
N.R.Nagaraj and G.V.Ravindra Reddy.
116. As per this affidavit of 2006 itself, the Society was
aware that Sy.No.24/1 had been sold and yet in the
appeal which was filed on 18.09.2008, the purchasers
were not impleaded or sought to be impleaded. This
indicates that knowing fully well that the land already been
transferred in favour of N.R.Nagaraj and G.V.Ravindra
Reddy, the Society essentially wanted to secure the order
behind their back.
- 63 -
NC: 2023:KHC:45622
117. These set of facts, which are not in dispute, clearly
establish that the Society had instituted the suit by
deliberately making false statements with the sole purpose
of securing a collusive decree.
118. The fact that a caveat was filed just a couple of days
before filing of the suit by its own Secretary on the
strength of a General Power of Attorney and very
conveniently, the Secretary conceded for a decree being
passed as prayed for, establish without a shadow of doubt
that it was the intent of the Society to secure a decree at
any cost.
119. The further fact that the Society preferred an appeal
after nearly five years and coincidentally, the caveat was
also filed just a few days before the appeal was filed, also
established that the order that had been obtained in RFA
No.1053 of 2008 was one of result of collusion.
120. If a Society engages in a litigation by making
statements which are blatantly false with the sole intention
- 64 -
NC: 2023:KHC:45622
of claiming title, when they had themselves acknowledged
to the State that they possessed no title and the title stood
restored to the land owners and that may be permitted to
obtain the amount deposited by them towards land cost,
establishes that they have acted in the most unethical
manner and therefore, do not deserve any discretion to be
exercised in their favour.
121. In the normal course, after having concluded that the
decree was obtained without the consent of the
defendants i.e., the appellants herein, the Court would
have remanded the matter for a trial to be conducted on
the merits of the claim. However, in the face of the
aforementioned facts, which are not in dispute at all, and
it clear that a brazen attempt was made by the Society to
abuse the process of the Court, this Court is of the view
that it would be appropriate to consider the entire material
on record and nip an illegitimate claim at the very bud.
122. It should also be kept in mind that if the matter is to
be remanded for a trial on merits, in the background of
- 65 -
NC: 2023:KHC:45622
the manner in which the process of the Court is sought to
be abused by the Society, it would basically be permitting
an unscrupulous litigant to abuse the process of the Courts
and would tantamount to granting them an opportunity to
make a virtue out of their vice.
123. There is yet another factor to be considered. In this
appeal, the Society produced the following nine
documents:
Sl.
Particulars of the documents
No.
1 GPA dated 14.12.2000;
2 Declaration-cum-ratification deed
dated 14.12.2000;
3 Agreement dated 15.03.1992;
4 Vouchers receipts;
5 GPA dated 11.06.1985;
6 GPA dated 14.08.1984;
7 Agreement dated 29.04.1984;
8 Final Settlement dated 08.11.1984
9 Agreement dated 27.02.1985;
- 66 -
NC: 2023:KHC:45622
124. By a letter dated 21.11.2022, the original
documents were referred to the Hand-Writing expert at
the Forensic Science Laboratory, Madiwala, Bengaluru
(FSL). The Laboratory submitted the report after the
judgment had been reserved stating that the signatures
found in the documents are found to be written by one
and the same person in the usual form executions.
125. The report was made available to the learned counsel
and the owners have filed objections to the said Report.
126. It has to be stated here, assuming that the
documents that the land owners had executed the General
Power of Attorney and Declaration-cum-Ratification Deed,
the fact remains that on the acquisition proceedings being
quashed, the title stood restored to the land-owners and
unless there was a conveyance of title by way of a
registered instrument, the documents upon which reliance
has been placed by the Society to claim title would be of
no consequence. The Forensic Report, even if were to be
accepted, does not alter the basic fact that a suit for
- 67 -
NC: 2023:KHC:45622
declaration has been decreed by consent of the paid
Secretary of the Society and the entire claim for a
declaration of title was on the basis of an un-registered
agreement. It is, therefore, clear that the FSL report would
be really of no consequence in the given facts and
circumstances of the present case.
127. The learned senior counsel places strong reliance on
the judgment rendered by the Hon'ble Apex Court in
Shanti Budhiya Vesta Patel and others vs. Nirmala
Jayaprakash Tiwari and others - (2010) 5 SCC 104,
to contend that a compromise decree obtained on the
basis of a General Power of Attorney executed by the
defendants could not be recalled or challenged by the
Principal. It is, no doubt, true that a person is entitled, in
law, to engage any person or his agent and such an agent
can enter into a compromise on his behalf. However, in a
case of this nature, where the decree of declaration is
passed by consent of an employee of the plaintiff and the
basis for that decree of declaration is an unregistered
- 68 -
NC: 2023:KHC:45622
declaration-cum-ratification deed, it is obvious that the
said decision relied upon cannot be applicable to the
present case.
128. In the case decided by the Hon'ble Supreme Court,
the execution of the General Power of Attorney had been
admitted and it was urged that the appellants therein were
forced to sign the terms of the consent. Such is, however,
not the situation prevailing in this case.
129. Learned senior counsel places reliance on the
decisions rendered by the Hon'ble Apex Court in M/s.Sree
Surya Developers And Promoters vs. N.Sailesh
Prasad and others- (2022) 5 SCC 736, in which the
judgments rendered by the Apex Court in the case of
Pushpa Devi Bhagat vs.Rajinder Singh - (2006) 5
SCC 566, Banwari Lal vs. Chando Devi (Smt)
(Through LRs) and another-(1993) 1 SCC 581, Trilok
Nath Singh vs. Anirudh Singh - 2020 6 SCC 629, were
considered and the Hon'ble Apex Court held that the Trial
Court was justified in rejecting the plaint on the ground
- 69 -
NC: 2023:KHC:45622
that it has been filed challenging the compromise decree
and such a suit was not maintainable.
130. The argument that the appeal itself is not
maintainable since the appeal is directed against a consent
decree cannot aslo be accepted in the present case.
131. As already stated above, the Society had filed the
suit in which its own Secretary had entered appearance as
a General Power of Attorney holder of the defendants and
had conceded for the said decree.
132. The owners, who had been arrayed as respondents,
had preferred an appeal contending that fraud had been
played on the Court and such a decree could not have
been passed by consent.
133. Since the alleged consent is strongly disputed and it
has been established that the paid Secretary of the
plaintiff--Society had himself conceded to the decree, it is
obvious that Section 96(3) of the Civil Procedure Code
would not be applicable to a case of such nature.
- 70 -
NC: 2023:KHC:45622
134. Similarly, the ratio laid down in M/s.Sree Surya
Developers And Promoters is that a suit cannot be filed
challenging the compromise decree. This is, however, an
appeal which is filed challenging the compromise decree
obtained by fraud. It is, therefore, clear that the said
decision is also not applicable.
135. I am, therefore, of the view that this is an
appropriate case where litigation has to be nipped in the
bud. Consequently, the appeal is allowed and the plaint
stands rejected as being devoid of a cause of action, as
evidenced by the plaint averment itself.
136. Since there is absolutely no cause of action for filing
of the suit and title cannot be declared in favour of the
plaintiff on the basis of the unregistered agreements of
sale, in my view, having regard to the fact that the Society
has clearly attempted to take this Court as well as the
Trial Court for a ride, it would be appropriate to impose a
cost of Rs.1,00,000/- (Rupees one lakh only) payable to
the appellants herein and it is so ordered.
- 71 -
NC: 2023:KHC:45622
137. In light of the judgment rendered in this appeal, it
would be a superfluous exercise to review the order
passed in R.F.A. No.1053 of 2008.
138. It is to be stated here that since pursuant to the
order passed in R.F.A. No.1053 of 2008, the Trial Court
has proceeded to accept the compromise petition and
dispose of the suit in terms of the compromise petition and
the order passed by the Trial Court pursuant to the said
order has been set aside by the allowing of R.F.A.
No.1743 of 2013. It would be unnecessary to consider the
review petition and is, accordingly, disposed of.
Sd/-
JUDGE
RK
CT:SN
