Karnataka High Court
Muthanappa vs Revanna on 18 July, 2023
Bench: H.P.Sandesh
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CRP No. 262 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO.262 OF 2022 (IO)
BETWEEN:
1. MUTHANAPPA
S/O LATE PUTTAIAH
AGED ABOUT 90 YEARS
2. SMT. GANGAMMA
WIFE OF LATE ANJINAPPA
AGED ABOUT 67 YEARS
3. CHIKKA HANUMAIAH
SON OF LATE ANJINAPPA
AGED ABOUT 50 YEARS
Digitally signed
by SHARANYA T 4. HANUMANTHARAJU
Location: HIGH SON OF LATE ANJINAPPA
COURT OF
KARNATAKA AGED ABOUT 35 YEARS
PETITIONER NOS.1 TO 4 ARE
R/AT PUTTAIANAPALYA
TAVAREKERE HOBLI 562132
BENGALURU SOUTH TALUK
5. SMT. ANJINAMMA
D/O LATE ANJINAPPA, W/O SAMPAIAH
AGED ABOUT 52 YEARS
R/AT BYADARAHALLI VILLAGE
NELAMANGLA TALUK 562123
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CRP No. 262 of 2022
6. SMT. JAYALAKSHMAMMA
D/O LATE ANJINAPPA
W/OF DEVARAJU
AGED ABOUT 40 YEARS
R/AT PUTTANAPALYA
TAVAREKERE HOBLI 562132
BENGALURU SOUTH TALUK
7. SMT. SHANTHAMMA
D/OF LATE ANJINAPPA
AGED ABOUT 38 YEARS
R/AT MARENAHALLI
VIJAYAANGARA
BANGALORE 560040.
...PETITIONERS
(BY SRI VASANTH KUMAR H T, ADVOCATE)
AND:
1. REVANNA
S/O LATE CHANNAIAH@ CHANNAPPA
AGED ABOUT 60 YEARS
2. KEMPAIAH
S/O LATE CHANNAIAH @ CHANNAPPA
AGED ABOUT 57 YEARS
3. LAKSHAMANA
S/O LATE CHANNAIAH @ CHANNAPPA
AGED ABOUT 55 YEARS
ALL ARE R/AT PUTTAIANAPALYA
TAVAREKERE HOBLI-562132
BENGALURU SOUTH TALUK
...RESPONDENTS
(BY SRI GOPI P M, ADVOCATE FOR
SRI P M SIDDAMALLAPPA, ADVOCATE)
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CRP No. 262 of 2022
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 22.04.2022 PASSED ON
I.A.NO.8 IN O.S.NO.113/2020 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, MAGADI AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed challenging the order of
rejection of the application filed under Order VII Rule
11(d) of CPC in O.S.No.113/2020.
2. This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The main contention of the defendants in the
application before the Trial Court is that the suit is barred
by law, there is no cause of action, the suit is bad for non-
joinder of necessary parties and without impleading all the
properties in the suit, they cannot seek the relief of
partition. In support of the application, an affidavit is
sworn to by defendant No.5 reiterating the fact that
already a suit was filed in O.S.No.24/2013 and parties
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have appeared and filed compromise petition and
compromise decree also passed. It is also contended that
in view of the said compromise decree, all the revenue
entries were changed in the name of the parties and the
parties have acted upon and now, they cannot file one
more suit seeking the relief of declaration to declare that
the compromise entered between the parties is not binding
on them on the ground that they are not the parties to the
suit when the mother of the plaintiffs is party to the said
compromise and same cannot be agitated and if any
grievance is having, they can approach the very same
Court where compromise was entered and not filing a
separate suit.
4. The said application is resisted by the counsel
for the plaintiffs before the Trial Court by filing statement
of objections contending that they are not the parties to
the compromise suit and also property is granted in favour
of their father hence, the same is exclusive property of the
father, thus, the mother can't give any consent to the said
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compromise and hence, the said disputed fact has to be
considered in a suit and not in an application filed under,
Order VII Rule 11 of CPC.
5. The Trial Court having considered the grounds
urged in the application and also in the statement of
objections, in paragraphs 7 taken note of the prayer
sought in the suit and also in paragraph 8 held that the
plaintiffs asserted that the suit schedule properties are the
self-acquired properties of their father and after death of
their father, they and their mother inherited same and
their mother had no exclusive or specific right over the
same and hence, the compromise decree does not bind
them and is liable to be declared as null and void and
cause of action for this suit arose during December 2019
when defendant Nos.2 to 8 were negotiating with others
for sale of the suit schedule properties and hence, the
relief is sought for declaration. The contention that the
suit is not maintainable for partial partition and non-
joinder of necessary parties and the Trial Court having
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taken note of the said fact into consideration comes to the
conclusion that specifically explained with regard to cause
of action for the suit and questions has to be decided only
in the trial and issue of res-judicata would be mixed
question of law and fact which is not a ground to reject the
plaint under Order VII Rule 11 of CPC. Hence, the present
revision petition is filed.
6. The main contention of the petitioners that the
Trial Court committed an error in rejecting the application
whereas there was already a compromise decree and
compromise decree cannot be challenged in a separate
suit but they can approach the very same Court with
regard to the said compromise decree. The counsel also
would vehemently contend that the mother of the plaintiffs
is also a party to the said compromise and the mother had
not challenged the same and the respondents are
admittedly the sons of defendant No.1 and they cannot
question the same in an independent suit.
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7. The counsel in support of his argument relied
upon the judgment reported in AIR 2022 SC 1031 in the
case of M/S SREE SURYA DEVELOPERS AND
PROMOTERS vs N SAILESH PRASAD AND OTHERS
wherein the Apex Court held that when an order has been
passed under Order XXIII Rule 3 of CPC while
compromising the suit and the same is barred by law. The
plaintiff has filed the suit challenging the compromise
decree and the Trial Court rejected the plaint under Order
VII Rule 11(d) of CPC on the ground that the said suit
would not be maintainable in view of specific bar under
Order XXIII Rule 3(a) of CPC and against said order, an
appeal filed before the High Court at the stage of deciding
the application filed under Order VII Rule 11, only thing
which was required to be considered by High Court was
whether suit would be maintainable or not and that suit
challenging compromise decree would be maintainable or
not in view of Order XXIII Rule 3(a) of CPC and High Court
did not deal with said crucial aspect, rather High Court set
aside the order of the Trial Court rejecting plaint by
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entering into merits of validity of compromise decree on
ground that same was hit by Order XXXII Rule 7 and order
of the High Court erroneous and liable to be set aside and
order of the Trial Court restored. The counsel referring this
judgment vehemently contend that the very judgment of
the Apex Court is aptly applicable to the case on hand.
8. The counsel also relies upon the judgment of
the High Court of Punjab and Haryana reported in
LAWS(P&H)-2008-3-51 in the case of MOORTI vs
KAUR SINGH wherein also the Court held that the suit is
not maintainable questioning the compromise decree in
view of the specific bar contained under Order XXIII Rule
3(a) of CPC.
9. Per contra, the learned counsel appearing for
the respondents would vehemently contend that the Trial
Court has given the reason while passing an order that the
questions involved between the parties has to be decided
only after the trial. The counsel also vehemently contend
that the plaintiffs are not parties to the compromise and
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then they cannot approach the very same Court and the
counsel would vehemently contend that the compromise
decree is a collusive decree and the same is obtained
within a span of 1½ months from filing of the suit and the
mother was not having any exclusive right to compromise
the suit.
10. The counsel in support of his arguments, relied
upon the order of this Court reported in CRP
No.397/2019 dated 27.06.2023 and brought to notice
of this Court that the Court has to look into the averments
of the plaint and this Court taken note of the creation of
documents when specific pleading was made in the plaint
in this regard.
11. Having heard the learned counsel appearing for
the parties and also on perusal of the material on record
as well as the grounds urged in the revision petition, the
point that would arise for the consideration of this Court
that:
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Whether an independent suit can be filed when
there was a compromise and whether there is a
bar under Order XXIII Rule 3(a) of CPC to file a
separate suit?
12. Having heard the learned counsel appearing for
the parties and also on perusal of the material on record it
discloses that the contention of the defendants before the
Trial Court by filing an application under Order VII Rule 11
of CPC is that there is no cause of action for the suit and
the same is barred by law and ought to have approached
the very same Court wherein compromise was entered
between the parties instead of filing the separate suit. It
is the contention of the revision petitioners that originally,
the property belongs to one Puttaiah and the same was
purchased in the year 1958 and also it is the contention
that grant was made in favour of the first son of Puttaiah
and after the death of Puttaiah, the property was
transferred to his wife and other sons of Puttaiah that is
Muthanjappa and Anjanappa and the said Muthanjappa
and Anjanappa have filed the suit in O.S.No.24/2013 and
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in the said suit, there was a compromise and compromise
decree was drawn. The counsel also submits that FDP is
also filed and final decree also passed and in support of
the said contention, he has produced the document to
show that final decree is also drawn.
13. The question before the Court is whether a
separate suit is maintainable before the Court. In view of
the judgment of the Apex Court referred supra, there
cannot be a separate independent suit by questioning the
judgment and decree drawn based on the compromise
entered between the parties and they can approach the
very same Court if any fraud or misrepresentation is
alleged while obtaining the order of compromise decree.
Admittedly, the mother of the plaintiff also a party to the
compromise decree. It is the contention of the counsel for
the respondents that compromise was entered within a
span of 1½ months from filing of the suit and also the
dispute in respect of the very same property. The
question that whether grant was a independent grant or
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not has to be decided in a separate suit when the mother
was represented and entered into a compromise with the
uncles of the plaintiffs and if any fraud or
misrepresentation in obtaining the compromise decree,
they can approach the very same Court questioning the
same and they cannot file a separate suit since there is a
bar under Order XXIII Rule 3(a) of CPC. Whatever
allegations are made with regard to compromise decree
which was entered between the mother and uncles of the
plaintiffs, the same has to be agitated in the said suit and
hence, the same is barred by law under Order XXIII Rule
3(a) of CPC and they have to approach the very same
Court to seek for an appropriate order. The Trial Court
failed to take note the said contention since already there
was a compromise decree in O.S.No.24/2013 and same
cannot be challenged in a separate suit. Hence, I do not
find any force in the contention of the respondents'
counsel. In the judgment relied upon by the counsel for
the respondents in CRP No.397/2019 referred supra, the
facts are different wherein the specific allegation was
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made in the plaint with regard to creation of documents
but in the case on hand, already there was a compromise
between the mother and uncles of the plaintiffs and the
same has to be questioned in the very same suit in which
compromise was entered between the parties. Hence,
there is a force in the contention of the petitioners' counsel
that there is a bar under Order XXIII Rule 3(a) of CPC to
challenge the compromise decree.
14. In view of the discussions made above, I pass
the following:
ORDER
The revision petition is allowed and consequently, the
application filed under Order VII Rule 11(d) of CPC is also
allowed and plaint is rejected and the plaintiffs are given
liberty to approach the very same Court where
compromise decree was passed in a suit filed in
O.S.No.24/2013.
Sd/-
JUDGE
SN
