Karnataka High Court
Bora vs Smt Sarojamma on 7 August, 2024
Author: V Srishananda
Bench: V Srishananda
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RFA No. 108 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 07TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL No.108 OF 2015 (PAR)
BETWEEN:
1. BORA @ BORAIAH @ BOREGOWDA,
S/O HALAGI BOREGOWDA,
AGED ABOUT 28 YEARS,
SINCE DEAD BY LR'S
1(a) SMT.ANITHA,
W/O LATE BOREGOWDA,
AGED ABOUT 35 YEARS,
1(b) MASTER YASWANTH GOWDA B.,
S/O LATE BOREGOWDA,
AGED ABOUT 7 YEARS,
SINCE 1(b) IS MINOR
Digitally HIS MOTHER REPRESENTED BY
signed by
MALATESH NATURAL GUARDIAN.
KC
Location: BOTH ARE RESIDING AT
HIGH SOMANAHALLI VILLAGE
COURT OF
KARNATAKA KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 425.
2. HUCHA @ HUCHAIAH @
HUCHEGOWDA,
S/O HALAGI BORA,
AGED ABOT 27 YEARS,
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RFA No. 108 of 2015
(RESIDENTS OF
SOMANAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT).
...APPELLANTS
(BY SRI.ANANTH MANDAGI, SENIOR COUNSEL A/W
SRI.SRINIVASA C., ADVOCATE)
AND:
1. SMT. SAROJAMMA,
D/O G. GANGAIAH,
AGED ABOUT 44 YEARS,
2. G. NAGARAJ,
S/O G GANGAIAH,
AGED ABOUT 48 YEARS,
SINCE DEAD BY LRS
2(a) SMT.JYOTHI B.S.,
W/O LATE G.NAGARAJ,
AGED ABOUT 47 YEARS,
RESIDING AT NO.363,
4TH MAIN ROAD,
NEAR J.P.PARK,
VIJAYANAGAR,
BANGALORE - 560 040.
2(b) MR.SHIVAGNI,
S/O LATE G.NAGARAJ,
AGED ABOUT 26 YEARS,
RESIDING AT NO.363,
4TH MAIN ROAD,
NEAR J.P.PARK, VIJAYANAGAR,
BANGALORE - 560 040.
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RFA No. 108 of 2015
3. SMT. JAYALAKSHMI,
W/O RAMESH,
AGED ABOUT 42 YEARS,
R/O SOMANAHALLI VILLAGE,
KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 401.
...RESPONDENTS
(BY SRI.A.S.MAHESHA, ADVOCATE FOR R3;
SRI.MURALIDHAR D., ADVOCATE PREVIOUSLY
APPEARED FOR R3 (ABSENT);
R2(a) AND R2(b) ARE SERVED AND UNREPRESENTED;
NOTICE TO R1 IS HELD SUFFICIENT VIDE ORDER
DATED 17.11.2017)
THIS RFA IS FILED UNDER ORDER 40 RULE - 1 & 2 READ
WITH SECTION 96 OF CIVIL PROCEDURE CODE TO CALL FOR
RECORDS AND SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE PRINCIPAL CITY CIVIL & SESSIONS JUDGE,
BENGALURU IN O.S.NO.3057/2009 DATED 18.07.2011 (WHICH
IS A COMPROMISE DECREE BETWEEN THIRD PARTIES) AND
AWARD COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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RFA No. 108 of 2015
ORAL JUDGMENT
Heard Sri Ananth Mandagi, learned Senior Counsel for the
appellants and Sri A.S. Mahesha, learned counsel for
respondent No.3. Learned counsel Sri Muralidhar D., who
represented respondent No.3 earlier is absent. Respondent
Nos.1, 2(a) and 2(b) are served and unrepresented.
2. The present appeal is filed by Sri Bora @ Boraiah @
Boregowda and Sri Hucha @ Huchaiah @ Huchegowda, who are
not parties to the suit in O.S.No.3057/2009, challenging the
compromise decree passed therein.
3. The facts in brief which are utmost necessary for
disposal of the present appeal are as under;
3.1 A suit came to be filed in O.S.No.3057/2009 on the
file of the learned Principal City Civil and Sessions Judge,
Bengaluru, for the relief of partition and separate possession in
respect of the following properties.
SCHEDULE
1. "All that piece and parcel of property bearing No.3
and 4, Khaneshmari Khatha No.341 of
Gidadhakonenahalliy Village (Part of Sy.No.31/1),
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Vishwaneedam Post, Yeshwanthapura Hobli,
Bangalore North Taluk, Bangalore-91, measuring
East to West 42 feet and North to South: 57 feet
and bounded on:
East by. Private Property
West by : Road
North by : Remaining Property
South by: Private Property
Alongwith the existing structure thereon.
2. All that piece and parcel of property bearing
Sy.No.9/1, Somenahalli Village, Koppa Hobli,
Maddur Taluk, Mandya, measuring Two Acres, Thirty
nine guntas and bounded on:
East by : Road
West by : Private Property
North by : Private Property
South by : Private Property
Alongwith the existing structure thereon."
3.2 The suit was being contested and on 18.07.2011,
learned counsel for the plaintiff filed a Special Power of
Attorney said to have been executed by the plaintiff in the
name of Sri Rajamani, S/o. Selvaraj. Learned counsel for
defendant No.2 filed a memo along with Special Power of
Attorney said to have been executed by defendant No.2 in the
name of Arasegowda, S/o. Kariyappa. Those attorneys were
present before the Court and they submitted a compromise
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petition under Order XXIII Rule 3 of CPC requesting the Court
to dispose of the suit in terms of the compromise petition.
3.3 The learned trial Judge read over the contents of
the compromise petition to the parties who are admittedly the
power of attorney holders of the plaintiff and defendant No.2
and they said to have admitted the terms of the compromise
petition to be true and correct. Therefore, the learned trial
Judge accepted the compromise petition and directed the office
to pass a final decree in terms of the compromise petition.
3.4 The said compromise decree is under challenge by
the appellants contending that fraud has been played on the
Court in as much as the original plaintiff viz., Sarojamma has
filed an affidavit stating that she has not engaged the services
of the Advocate Sri Ravikumar S.R. to file the suit and her
signatures on the plaint and vakalath are forged one.
3.5 It is also contended by the appellants that the
properties not belonging to Sarojamma have been shown as
Schedule Properties in the plaint and by playing fraud on the
Court, compromise decree came to be passed and therefore,
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the same needs to be set aside as admittedly the properties are
belonging to the appellants herein.
3.6 Yet another ground on which the appeal is filed is
that, when the appellants tried to file necessary application to
get themselves impleaded in the suit, the trial Court did not
permit them to come on record and passed the decree, which is
affecting the rights of the appellants.
3.7 The appellants also contended that they were the
minors at the relevant point of time and they have attained
majority and their shares in the suit properties has been
meddled with by the judgment of the trial Court in accepting
the compromise petition and sought for allowing the appeal.
4. The plaintiff in the present appeal is respondent
No.1, who has been served with notice and remained absent
before this Court. Respondent No.2 is Sri G. Nagarj, who is no
more and his legal representatives are brought on record and
they are also have been served with notice and remained
absent. Respondent No.3 was defendant No.2 before the trial
Court, who is now represented by learned counsel Sri A.S.
Mahesha.
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5. Sri Ananth Mandagi, learned Senior Counsel for the
appellants, reiterating the grounds urged in the appeal memo
contended that the compromise decree has been challenged by
the present appellants as their interest in respect of the suit
properties is put to jeopardy by the compromise decree and the
affidavit filed by Smt. Sarojamma- respondent No.1 in the
present appeal makes it clear that there was a clear fraud
played on the Court while passing the compromise decree and
such decree needs to be set aside.
6. He also contended that the bar contemplated under
Order XXIII Rule 3A of CPC would not apply to the appellants
herein as they are not claiming their right under any one of the
parties in the suit and therefore, the appellants have got a right
to appeal against the compromise decree or file a separate suit
and the appellants have chosen to file the appeal and therefore,
he sought for allowing the appeal.
7. Sri A.S. Mahesha, learned counsel representing
respondent No.3 in the appeal who was defendant No.2 before
the trial Court, however, tried to justify the compromise decree
by contending that, if at all the appellants are aggrieved, they
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may have to file necessary application in the very same suit
challenging the compromise decree and not by filing a separate
appeal or a separate suit as is held by the Hon'ble Apex Court
in the case of Bhargavi Constructions Vs. Kothakapu
Muthyam Reddy, reported in (2018) 13 SCC 480.
Therefore, he sought for dismissal of the appeal.
8. In support of his arguments, he placed reliance on
the reported judgment of this Court in the case of Smt.
Shantawwa Vs. Hanamant Bhimappa Bhajantri in MSA
No.100010/2021 dated 02.02.2024.
9. Having heard the parties in detail, this Court
perused the material on record meticulously. On such perusal,
it is crystal clear that the appellants are not parties to the suit.
The appellants being the minors, their interest was not
considered by the trial Court, especially, when the property
that is belonging to the family of the appellants was the subject
matter of the suit.
10. Learned counsel appearing for respondent No.3 has
raised a question on maintainability of the appeal which should
be considered by this Court at the first instance. No doubt, a
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compromise decree cannot be the subject matter of another
suit or appeal as there is an embargo created by the statute
under Order XXIII Rule 3A of CPC. For ready reference, the
said provision is culled out herein under;
"3A. No suit shall lie to set aside a decree on the ground
that the compromise on which the decree is based was
not lawful."
11. The decision relied on by the learned counsel for
respondent No.3 rendered by this Court dated 02.02.2024 was
on a different context altogether. For ready reference, the
relevant portion of the said decision is culled out hereunder;
"14. This Court bestowed its attention to the rival
contentions of the parties and perused the material on
record meticulously.
15. The prime contention for filing a separate suit
in O.S. No.98/2016 by the respondent in this appeal who
was the first defendant in O.S. No.358/2015 is that on the
day when the matter was settled before the Lok Adalatk,
first defendant was not present and he has been
impersonated and award came to be passed by the Lok
Adalath by accepting the compromise petition.
16. As such, compromise decree would not only be
binding on the defendant Hanamant Bhimappa Bhajantri,
but also award is bad on the ground that the same has
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been obtained by fraud. As such what is the remedy who
has suffered such an order in such circumstances is no
longer res integra.
17. The Hon'ble Apex Court in the case Bhargavi
Constructions (supra) has clearly held that when there is
a bar under the Act, 1987, the only remedy is to file a
writ petition challenging the compromise decree passed in
the Lok Adalath.
18. In view of the authoritative pronouncement of
the Hon'ble Apex Court, further discussion on the
judgments relied on by the respondent which were
rendered by different High Courts is unnecessary.
19. Further, when there was no appeal provision,
the only remedy that is available to challenge the order
by way of writ petition under the Article 226 and 227 of
the Constitution of India.
20. At this stage Shri. O. B. Joshi, learned counsel
for the respondent contended that in writ jurisdiction to
establish the plea of fraud is difficult and therefore,
separate suit is maintainable.
21. If is for the Court to find out what is the
methodology to be adopted if there is a allegation of
fraud.
22. It is no doubt true that if there is a allegation of
fraud, no remedy is carved out under the Act, 1987.
When so such remedy is available, the only remedy that
is available is to challenge the provisions of the statute in
a appropriate writ petition.
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23. As such, filing a separate suit under Section 9
of CPC when there is a clear bar under the Act, 1987 is
thus clearly not maintainable. Therefore, there is no
substance in the argument put forth on behalf of the
respondent.
24. The only remedy that is available for the
respondent who said to have been cheated by
impersonation and a compromise decree came to be
passed is to approach the High Court in a writ petition
under article 226 and 227 of the Constitution of India.
25. Reserving such liberty for the respondent
Hanamant Bhimappa Bhajantri, this Court is of the
considered opinion that the judgment passed by the first
Appellate Court needs to be set aside and that of the Trial
Court in dismissing the suit in O.S.No.98/2016 is to be
upheld.
26. Hence the following order is passed:
ORDER
(i) Miscellaneous Second Appeal is allowed.
(ii) Order passed in R.A. No.14/2019 dated
30.11.2020 by the learned Senior Civil Judge,
Saundatti, decreed in setting aside the
judgment passed in O.S.No.98/2016 and
decreeing the suit is hereby set aside.
(iii) The respondent in the appeal is entitled to
challenge the compromise decree in an
appropriate writ petition.
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(iv) It is made clear that if such writ petition is
filed, time spent in filing the separate suit,
appeal and the present second appeal may be
sought to be excluded by resorting under
Section 12 of the Limitation Act, 1963 and
appellant herein shall not oppose the writ
petition only on the ground of delay and
latches."
12. On careful reading of the provision of law and the
judgment of the Hon'ble Apex Court referred to in the aforesaid
decision, it is crystal clear that a person who is interested in the
suit property and not having any independent interest, cannot
question the compromise decree by a separate suit or by filing
an appeal. But, if a person who does not claim under any one
of the parties, the right in respect of the property which is the
subject mater of a compromise decree, he can very well
maintain a separate suit and the embargo found in the
aforesaid provision would not apply to such persons.
13. In the case on hand, the appellants claim that they
are not claiming their interest under any one of the parties to
the suit. But by the compromise entered by the parties in
O.S.No.3057/2009, the rights of the appellants are involved is
settled amongst the parties who are no way connected with
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those properties. Whether at all the appellants had got
exclusive right over the suit properties or respondent No.3 in
this appeal who was defendant No.2 before the trial Court, is
also having interest over the suit properties cannot be
adjudicated by this Court, as it is in the exclusive domain of
trial judge, if at all a intended suit is filed by any of the
interested parties. As such, this Court in this appeal need not
record any finding, as to the rights of the parties.
14. Therefore, the objection raised by respondent No.3
that the present appeal by the appellants is not maintainable in
view of the aforesaid provision of law cannot be countenanced
in law.
15. Further, the decision of the Hon'ble Apex Court in
the case of Bhargavi (supra) referred to by this Court in the
decision rendered by this Court in Shantawwa (supra), is thus
clearly distinguishable in the facts and circumstances of the
present case.
16. Having held that, the appeal is maintainable and
the appeal needs to be considered on merits.
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17. Admittedly, the decree is a compromise decree.
Plaintiff having filed the affidavit which is placed on record, the
very suit itself is not maintainable before the trial Court.
Needless to emphasise that, if a suit is not maintainable, any
decree passed therein should also be nullified; moreso, having
regard to the fact that the plaintiff has categorically stated that
she has not engaged the services of Advocate Sri Ravi Kumar
to file the suit.
18. It is also pertinent to note that the plaintiff did not
appear before the trial Court at the time of compromise and a
Special Power of Attorney said to have been executed by the
plaintiff in favour of Sri Rajamani, S/o Selvaraj, who was
present before the Court for accepting the compromise for and
on behalf of the plaintiff.
19. So also on behalf of the defendant No.2, who is
respondent No.3 before this Court did not appear before the
trial Court for the purpose of signing the compromise or
accepting the compromise and defendant No.2 who is
respondent No.3 before this Court was represented by Power of
Attorney Holder by name Arasegowda, S/o. Kariyappa.
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20. In other words, the original parties were not
present before the Trial Court when the compromise petition
was accepted by the trial Court. In such circumstances, the
trial Court should have been extra careful in accepting the
compromise, especially, when both the parties are represented
by the Special Power of Attorney. It is needless to emphasize
that the statutory provisions under Order XXIII of the Code of
Civil Procedure contemplates onerous responsibility to be
discharged by the learned Trial Judge who is required to record
satisfaction as to the genuineness of the compromise.
21. Under such circumstances, the compromise decree
that has been passed in O.S.No.3057/2009 needs to be set
aside. Needless to emphasise that once the compromise
decree is set aside, it is for the parties to work out their remedy
in the very same suit or in any other suit/proceedings.
22. At this stage, Sri Ananth Mandagi, learned Senior
Counsel submits that infact, respondent No.3 has filed a suit
which was dismissed and the decree copy thereof is placed
before this Court. The appellants have filed a suit in
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O.S.No.18/1997 against the respondents herein and the said
suit came to be decreed on 21.06.2021.
23. Learned counsel Sri A.S. Mahesha submits that a
Miscellaneous Case is filed and the same is being pursued.
24. As such, all that this Court can observe while
disposing of this appeal is that, setting aside of the compromise
decree passed in O.S.No.3057/2009 which is the subject matter
of this appeal shall not hamper the rights of the parties in the
pending case/proceedings. With said observation, the following;
ORDER
Miscellaneous Second Appeal is allowed.
The compromise decree passed in O.S.No.3057/2009
dated 18.07.2011 by the learned Principal City Civil and
Sessions Judge, Bengaluru, is hereby set aside.
No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
PN
