Karnataka High Court
Sri M Kumar vs Sri M T Venaktaraju on 29 February, 2024
1 WP.No.16611/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY , 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO.16611/2022 (GM-CPC)
BETWEEN:
1. SRI M KUMAR
@ T M SHIVAKUMAR
S/O LATE T M MAHADEVAIAH
AGED ABOUT 56 YEARS
RESIDENT OF AVALAKKI STREET
TAVAREKERE, MAGADI MAIN ROAD
BENGALURU SOUTH
BENGALURU - 562 130
2. SRI HANUMANTHARAJU
S/O MUTTAVENKATAIAH
AGED ABOUT 57 YEARS
RESIDING AT KENGERI ROAD
MANJUNATHA NAGARA
TAVAREKERE VILLAGE & HOBLI
BENGALURU SOUTH TALUK
BENGALURU - 562 130
... PETITIONERS
(BY SMT: SARITHA A.L. FOR
SRI: S. SHANKARACHAR, ADVOCATES)
AND:
1. SRI M T VENAKTARAJU
S/O M THIMMAPPA
AGED ABOUT 39 YEARS
RESIDING AT NO.535
MEGHALA BEEDHI
2ND MAIN ROAD, KENGERI
BENGALURU - 560 060
2 WP.No.16611/2022
2. SRI M THIMMAPPA
S/O MUTHUVENKATAPPA
AGED ABOUT 70 YEARS
RESIDING AT NO.535
MEGHALA BEEDHI
2ND MAIN ROAD, KENGERI
BENGALURU - 560 060
... RESPONDENTS
(BY SRI: NAIK N.R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
11.03.2017 IN O.S.NO.7865/2016 PASSED BY THE LOK ADALAT -
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU, A
COPY OF WHICH IS PRODUCED AT ANNEXURE-C AND DIRECT THE
LEARNED LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU TO DISPOSE THE SUIT O.S. NO.7865/2016 AFRESH
AFTER GIVING OPPORTUNITY TO THE PETITIONER TO CONTEST THE
SUIT TO MEET THE ENDS OF JUSTICE AND ETC.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
14.02.2024 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioners are impugning the award dated 11.03.2017
passed in OS No.7865 of 2016 on the file of the learned
Additional City Civil and Sessions Judge, Bengaluru, before Lok
Adalath and decreeing the suit in terms of the compromise
petition.
2. Heard Smt A L Saritha, learned counsel for the
petitioners and Sri N R Naik, learned counsel for the
respondents. Perused the materials on record.
3. Learned counsel for the petitioners submitted that
initially the suit OS No.281 of 2014 was filed for partition and
separate possession. The petitioners and the respondents herein
are parties to the suit and the same is pending consideration.
Learned counsel further submitted that during the pendancy of
OS No.281 of 2014, by suppressing the said fact, respondent
No.1 filed the suit OS No.7865 of 2016 again seeking partition
and separate possession against respondent No.2 herein.
Respondent Nos.1 and 2 herein are the son and the father and
they are the plaintiff and defendant in OS No.7865 of 2016.
Immediately after filing of the suit, respondent Nos.1 and 2
entered into compromise and settled the dispute before Lok
Adalat and accordingly, an award was passed on 11.03.2017
behind the back of other parties in OS No.281 of 2014. Taking
advantage of the said award, respondent Nos.1 and 2 are
attempting to interfere with the possession and enjoyment of the
plaint schedule property in OS No.281 of 2014 and therefore, an
application was filed by the petitioners seeking to set aside the
compromise decree and till then stay the compromise decree as
the same was obtained suppressing the materials facts, in
collusion with one another.
4. Learned counsel submitted that considering the
contention taken by the parties and after being satisfied prima
facie that a collusive compromise decree was obtained by the
respondents, the Trial Court proceeded to pass orders on IA.VI
staying the operation and execution of the compromise decree
dated 11.03.2017 passed in OS No.7865 of 2016. However, the
said order was challenged before this Court by respondent No.2
in Writ Petition No.14369 of 2020. The said writ petition came to
be allowed by setting aside the order of stay granted on IA.VI.
The co-ordinate Bench of this Court categorically observed that
the remedy for the petitioner - respondent No.2 herein is to
approach the writ court under Article 227 of the Constitution of
India basing on the decision of Hon'ble Apex Court in State of
Punjab and another Vs Jalour Singh and Others1.
Therefore, the petitioners have filed the present petition seeking
to set aside the impugned award dated 11.03.2017 passed in OS
No.7865 of 2016. Accordingly, she prays for allowing the petition
in the interest of justice.
5. Per contra, learned counsel for the respondents
opposing the petition submitted that respondent No.1 filed the
suit OS No.7865 of 2016 against respondent No.2 and during the
pendancy of the suit, both of them came to terms and
compromised the dispute before Lok Adalat. Even though, the
award was passed during 2017, the petitioners are seeking to set
aside the same by filing the present petition in the year 2022.
There is inordinate delay in seeking the relief and therefore, the
petition is liable to be dismissed.
6. Learned counsel further submitted that as on today,
respondent No.2 is not a party in OS No.281 of 2014 and thus,
the petitioners are not entitled for any relief in the present
petition. Accordingly, he prays for dismissal of the petition.
7. The contention of the parties when considered in the
light of the materials on record, admittedly OS No.281 of 2014
was filed by one Pujavenkataiah and others against respondent
No.2 herein who is defendant No.4 therein and others seeking
partition and separate possession of two items of properties
described in the schedule. Admittedly, the suit is still pending for
consideration. In the meantime, respondent No.1 herein being
the son of respondent No.2 filed the suit OS No.7865 of 2016
again seeking partition and separate possession. It is stated that
AIR 2008 SCC 1209
while filing the suit OS No.7865 of 2016, there is no reference to
the pending suit in OS No.281 of 2014. The copy of plaint and
the order sheet in OS No.7865 of 2016 discloses that the suit
was filed on 14.11.2016. On the first day of hearing itself, both
the parties have requested to refer the matter for Lok Adalat and
accordingly, it was referred to Lok Adalat and it was settled as
per the compromise entered into on 11.03.2017.
8. When respondent No.2 herein was a party to the suit
in OS No.281 of 2014, which was filed for partition and separate
possession, what was the necessary for his son - respondent
No.1 to file a separate OS No.7865 of 2016 is not explained by
the learned counsel for the respondents. However, he contends
that as on today, respondent No.2 is not a party in OS No.281 of
2014. It is stated that in view of the order dated 29.08.2023,
the suit against respondent No.2 was dismissed. It is pertinent
to note that the said order dated 29.08.2023 was passed
recently during the pendancy of this writ petition and after
disposal of Writ Petition No.14369 of 2020 by this Court.
9. Petitioner No.1 is defendant No.6 in OS No.281 of
2014. It is his contention that the suit in OS No.7865 of 2016 is
a collusive suit between the father and the son by suppressing
the pendancy of suit OS No.281 of 2014. Admittedly, the said
suit is between the son and father and there was no reference to
the pendancy of suit in OS No.281 of 2014. It is also admitted
that respondent No.2 herein is defendant No.4 in the said suit.
There was absolutely no reason for respondent No.1 to file a
separate suit seeking partition against his own father, when the
other suit for partition and separate possession between several
parties was still pending consideration, that too by suppressing
the fact of pending of the suit OS.No.281/2014.
10. Petitioners have filed an application before the Trial
Court in OS No.281 of 2014 seeking to stay the operation of the
award passed before the Lok Adalat in OS No.7865 of 2016. The
said application was allowed by the Trial Court after being
satisfied that the respondents are successful in getting a decree
by suppressing the material facts and prima facie it is a collusive
award. When the said order was challenged before this Court in
Writ Petition No.14369 of 2020, the same came to be allowed
and the impugned order staying the operation of Lok Adalat
award was set aside. It is observed by the co-ordinate Bench of
this Court that in view of the judgment rendered by the Hon'ble
Apex Court in Jalour Singh (supra), the only remedy for the
petitioners herein is to approach the writ court under Article 227
of the Constitution of India. Accordingly, the petitioners are
before this Court seeking to quash the award dated 11.03.2017
passed in OS No.7865 of 2016 before the Lok Adalat.
11. When the petitioners are not parties to the
compromise award passed by the Lok Adalat and there is no bar
for them to file a separate suit seeking to set aside the said
compromise award. But the fact remains that this Court in Writ
Petition No.14369 of 2020 by allowing the petition directed them
to approach this Court under Article 227 of the Constitution of
India. Under such circumstances, if the petitioners are directed
to file a separate suit seeking to set aside the compromise
award, that will amount to tossing the petitioners from one Court
to another without providing any relief. Therefore, I am of the
opinion that by exercising the extra ordinary jurisdiction under
Articles 226 and 227 of the Constitution of India, the writ petition
is to be considered on merits.
12. The facts and circumstances discussed above, prima
facie, discloses that respondent No.2 was a party in OS No.281
of 2014 filed for partition and separate possession. During the
pendancy of the said suit, his son i.e., respondent No.1 herein
filed a suit OS No.7865 of 2016 seeking similar relief of partition
and separate possession. On the first date of hearing itself, the
matter was got referred to Lok Adalat and a compromise award
came to be passed. It is also pertinent to note that during the
pendency of this writ petition, the plaintiff in OS No.281 of 2014
sought for dismissal of the suit against defendant No.4 and on
the same day, the suit came to be dismissed against him,
without bringing it to the notice of the petitioners. When all these
facts and circumstances with dates and events are considered, it
prima facie supports the contention of the petitioners that the
parties to the compromise award were colluding with one
another to defeat the right of the plaintiffs. It is nothing short of
playing fraud not only against the petitioners but also against the
Court. Fraud vitiates everything. When there are prima facie
materials to support the contention of the petitioners, in view of
the peculiar facts and circumstances of the case, I am of the
opinion that the petitioners are entitled for the relief as claimed,
as otherwise, it will encourage getting the compromise award
before the Lok Adalat in collusion with one another only for the
purpose of defeating the rights of the parties.
13. In view of the discussions held above, I proceed to
pass the following:
ORDER
(i) The writ petition is allowed.
(ii) The compromise award dated 11.03.2017 passed in
OS No.7865 of 2016 in the Lok Adalath, on the file of the learned
Additional City Civil and Sessions Judge, Bengaluru, is hereby set
aside with effect from the date of the award.
(iii) As a result, the suit OS No.7865 of 2016 is restored
on file to be considered along with OS No.281 of 2014 pending
on the file of the learned Principal City Civil and Sessions Judge
at Bengaluru.
The Trial Court is directed to take note of the fact that the
suits are of the year 2014 and 2016 and to dispose off the same
expeditiously with the co-operation of both the parties.
Sd/-
JUDGE
*bgn/-
