Karnataka High Court
Mrs. Parveen W/O Ashraf Ali vs Sri. Mohammed Hussain S/O Gafoor Sab on 22 October, 2024
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CRP No. 100026 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO. 100026 OF 2023
BETWEEN:
MRS. PARVEEN,
W/O S. ASHRAF ALI,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD WORK,
R/O: WARD NO.15 ,
KRISHI NAGAR,
SHIRUGUPPA.
...PETITIONER
(BY SRI. ANKIT DESAI, ADVOCATE FOR
SRI. MALLIKARJUNSWAMY.B.HIREMATH, ADVOCATE)
AND:
Digitally signed
by BHARATHI H 1. SRI. S. MOHAMMED HUSSAIN
M
BHARATHI
Location: HIGH
COURT OF
S/O S. GAFOOR SAB,
HM KARNATAKA
DHARWAD AGED ABOUT 48 YEARS,
BENCH
Date: 2024.10.25
10:56:02 +0530 OCC: PRIVATE SERVICE,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
2. S. SIRAJ,
S/O. S. GAFOOR SAB,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
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CRP No. 100026 of 2023
3. ABDUL RAWOOF,
S/O. S. GAFOOR,
AGED ABOUT 33 YEARS,
OCC: TAILOR,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
4. S. ZAINULABIDIN,
S/O. S. GAFOOR,
AGED ABOUT 30 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
5. MRS. MAHABANI
W/O. A. ABDUL GANI,
AGE: 66 YEARS,
OCC: HOUSE WIFE,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
6. MRS. SUNNI MAA
W/O. S. ABDUL GAFOIOR SAN,
AGED ABOUT 76 YEARS,
OCC: HOUSE WIFE,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
7. S. BASHA,
S/O. S. RAHIM SAB,
AGED ABOUT 54 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
8. S. ABUSALEHA
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CRP No. 100026 of 2023
S/O. S. RAHIM SAB,
AGED ABOUT 49 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
9. S. YASIN,
S/O. S. RAHIM SAB,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
10. MRS. MALAN BI.
W/O. ABDU RAHIM,
AGED ABOUT 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
11. S. NASIR HUSSAIN
S/O. KHADER BASHA,
AGED ABOUT 48 YEARS,
OCC: PRIVATE SERVICE,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
12. S. MOHAMMED HASHAM
S/O. KHADER BASHA,
AGED ABOUT 42 YEARS,
OCC: MECHANIC,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
13. MUKTAR AHAMED
S/O. KHADER BASHA,
AGED ABOUT 42 YEARS,
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CRP No. 100026 of 2023
OCC: MECHANIC,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
14. S. MOHAMMED RIYAZ
S/O. S. KHADER BASHA,
AGED ABOUT 38 YEARS,
OCC: TAILOR,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
15. S. ALAM BASHA
S/O. S. KHADER BASHA,
AGED ABOUT 35 YEARS,
OCC: WELDER,
R/O: WARD NO.1,
NEAR VALLUR MASJID,
SIRUGUPPA-583 101.
16. S. KHASIM
S/O. NAZEER AHAMED
AGED ABOUT 55 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.15,
KRISHINAGAR,
SIRUGUPPA TOWN-583 101.
17. S. ABRAR HASSAIN
S/O. NAZEER AHAMED,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURIST,
R/O: WARD NO.15,
KRISHINAGAR,
SIRUGUPPA-583 101.
18. SMT. FAZLUN BI.
W/O. AHAMED HUSSAIN,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD,
R/O: ERA B R B COLLEGE,
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RAICHUR TOWN,
RAICHUR DISTRICT-584 101.
19. ABDUL RAHIM
S/O. DR. ABDU SAB,
AGED ABOUT 45 YEARS,
OCC: PRIVATE WORK,
R/O: BEHIND PYATI ANJANEYA TEMPLE,
GANGA NAGAR,
SIRUGUPPA TOWN-583 101.
20. MUBARK BEGUM
W/O. MR. HIDAYATHULLA,
AGED ABOUT 40 YEARS,
OCC: HOUSEHOLD,
R/O: BEHIND PYATI ANJANEYA TEMPLE,
GANGA NAGAR,
SIRUGUPPA TOWN-583 101.
21. ABDULLA
S/O. MR. HIDAYATHULLA,
AGED ABOUT 26 YEARS,
OCC: HOUSEHOLD
R/O; BEHIND PYATI ANJANEYA TEMPLE,
GANGA NAGAR,
SIRUGUPPA TOWN-583 101.
22. SMT. NOOR JAHAN,
W/O. LATIF,
AGED ABOUT 44 YEARS,
OCC: HOUSE WIFE,
R/O: NEAR R.P OFFICE,
BALLARI ROAD,
HOSPET TOWN-583 101.
23. MRS. SAJIDA BEGUM SHAIK
W/O. SHAIK SAH VALI,
AGED ABOUT 40 YEARS,
OCC: HOUSE WIFE,
R/O: NEAR WATER TANK,
BELGLA ROAD,
BALLARI-583 101.
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24. SYED HAKIM,
S/O. SYED ALAM
AGED ABOUT 42 YEARS,
OCC: BUSINESS,
R/O: NEAR BUS STAND,
KAMPLI, HOSPET TALUK,
BALLARI DISTRICT-583 101.
25. MOHAMMED HANIF
S/O. SHEKSHA VALI,
AGED ABOUT 45 YEARS,
OCC: PRIVATE SERVICE,
R/O: KARKHANA PET,
ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
26. CHAND BASHA
S/O. SHEKSHA VALI,
AGED ABOUT 40 YEARS,
OCC: PRIVATE SERVICE
R/O: KARKHANA PET,
ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
27. SHARIF,
S/O. SHEKSHA VALI,
AGED ABOUT 38 YEARS,
OCC: PRIVATE SERVICE
R/O: KARKHANA PET,
ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
28. FAROOQ,
S/O. SHEKSHA VALI,
AGED ABOUT 45 YEARS,
OCC: PRIVATE SERVICE
R/O: KARKHANA PET,
ADONI TOWN,
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KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
29. MRS. GHOUS MAA,
W/O. BAIG,
AGED ABOUT 40 YEARS,
OCC: HOUSE WIFE,
R/O: KARKHANA PET,
ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
30. MRS. JAIBUN BI
W/O. ALLABAKSH,
AGED ABOUT 46 YEARS,
OCC: HOUSE WIFE,
R/O: GOKHAR JHANDA,
ADONI, TOWN, KARNOOL,
ANDRA PRADESH-535 594.
31. MR. SYED HUSSAIN
S/O. SYED MOHAMMED HUSSAIN,
AGED ABOUT 55 YEARS,
OCC: PRIVATE WORK,
R/O: NGO COLONY,
1ST WARD, BARPET, ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
32. SYED RASOOL SAB
S/O. SYED MOHAMMED HUSSAIN,
AGED ABOUT 48 YEARS,
OCC; PRIVATE WORK,
R/O: NGO COLONY,
1ST WARD, BARPET, ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
33. MR. NAZEER AHAMED
S/O. MOHAMMED HUSSAIN,
AGED ABOUT 46 YEARS,
OCC: PRIVATE WORK,
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CRP No. 100026 of 2023
R/O: NGO COLONY,
1ST WARD, BARPET, ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
34. MR. MOINUDDIN
S/O. SYED MOHAMMED HUSSAIN
AGED ABOUT 44 YEARS,
OCC; PRIVATE WORK,
R/O: NGO COLONY,
1ST WARD, BARPET, ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
35. MR. KHASIM
S/O. SYED MOHAMMED HUSSAIN,
AGED ABOUT 46 YEARS,
OCC: PRIVATE WORK,
R/O: NGO COLONY,
1ST WARD, BARPET, ADONI TOWN,
KARNOOL DISTRICT,
ANDRA PRADESH-535 594.
36. SRI. RAMLAINGAPPA
S/O. LATE BOJJAPPA,
AGE: NOT KNOWN,
OCC: AGRICULTURIST,
R/O: SIRUGUPPA TOWN,
DISTRICT: BALLARI-583 101.
...RESPONDENTS
(BY SRI. MOHAMMED ABRAR S., ADVOCATE FOR R1-R4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
PRAYING TO SET ASIDE THE ORDER DATED 21.10.2022
PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE BALLARI,
SITTING AT SIRUGUPPA REJECTING THE IA NO.5 IN OS
NO.217/2019.
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CRP No. 100026 of 2023
THIS PETITION IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL ORDER
Aggrieved by the order dated 21.10.2022, passed on I.A.
No.5 in O.S. No.217/2019 by the II Additional Senior Civil
Judge, Ballari, sitting at Siruguppa (for short, 'the Trial Court),
defendant No.14 is before this Court. The defendants No.14 &
13(c) have filed an application under Order VII Rule 11(d) read
with Section 151 of the Code of Civil Procedure, 1908, praying
to reject the plaint and the same has been dismissed by the
Trial Court.
2. O.S. No.217/2019 is filed seeking relief of partition;
to declare that the alleged compromise decree passed in O.S.
No.43/2012 on the file of the Hon'ble Civil Judge and JMFC at
Siruguppa as null and void and not binding on the plaintiffs
No.1 to 4 and their shares; to declare that the alleged gift deed
dated 28.05.2006 is null and void and not binding on the
plaintiffs; to declare the sale deed dated 30.01.2019 as null
and void and not binding on the plaintiffs. The plaintiffs have
also questioned the partition deed dated 23.09.2017 executed
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by defendant No.26 in favour of defendant No.27 as null and
void and not binding on the plaintiff. The present I.A. No.5
came to be filed by defendant No.14 and defendant No.13(c)
stating that the mother of the plaintiffs, who is defendant No.2
in the present suit, were the parties to O.S. No.43/2012. All the
parties duly represented through their recognized agents were
present before the Lok Adalat and they entered into a
compromise and the compromise petition came to be allowed.
It was stated that the plaintiffs in the present suit had given up
their rights having received an amount of Rs.20,00,000/-
towards consideration. Further, it was stated that all the parties
also agreed not to interfere with the lawful possession of
defendant No.14. Accordingly, the compromise was reached
and a compromise decree, dated 20.07.2013, was passed by
the Lok Adalat. The mother of the plaintiffs and others had
challenged the said compromise decree dated 20.07.2013 by
filing M.C. No.6/2013 and the same came to be dismissed as
not maintainable vide order dated 02.06.2014. Against that,
writ petitions in W.P. No.106062-63/2014 was filed before this
Court and by order dated 20.04.2016, this Court dismissed the
above writ petition confirming the order passed by the Trial
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Court. Further, while dismissing the said writ petition, the Court
has observed that the parties are reserved with the right to
workout their remedy against other co-plaintiffs and thus, the
compromise decree dated 20.07.2013 had attained finality. It is
the case of the defendants that the plaintiffs colluded with their
mother i.e., defendant No.2 twisted the facts and created facts
in order to suit their false claim and as such, the compromise
decree dated 20.07.2013 creates bar under Order XXIII Rule 3
of CPC against the plaintiff from filing fresh suit before the
Court. Hence pleaded the Court to reject the plaint.
3. Considering the case of the defendants, the Trial
Court has observed that the parties to the
compromise/settlement, which is the basis for passing an
Award by the Lok Adalat, no doubt, were entitled to challenge
the award on any of the grounds. The Trial Court has observed
that the well established remedy available to the third party to
the award was to institute a separate suit or proceeding for
necessary redressal and seek appropriate decree of declaration
by filing a suit; under Section 34 of the Specific Relief Act, 1963
any person having a legal right, has to file a suit for a
declaration that the decree passed by a civil court in an earlier
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suit is not binding on him. Having observed so, the Trial Court
has come to the conclusion that the plaintiffs in the suit, who
were not parties to the compromise decree, can maintain a suit
for cancellation of the same. The Trial Court has come to the
conclusion that the judgment relied on is not applicable to the
facts and circumstances of the case and having opined that
there was no merit in the application, had dismissed I.A. No.5.
4. Learned counsel appearing for petitioner/defendant
No.14 has reiterated the grounds that were raised before the
Trial Court and submits that the mother being a party to the
compromise decree, and when her petition in M.C. No.6/2013 is
dismissed and the writ petitions filed against the same was also
dismissed concurrently holding against the mother of the
plaintiffs as such, the plaintiffs cannot maintain a suit. It is the
contention of the learned counsel that a separate suit is not
maintainable and he relies on a judgment of the Apex Court in
the case of Vippan Agarwal Vs. Raman Gandotra in Civil Appeal
No.3492/2022. It is the contention of the learned counsel that
the Trial Court has failed to consider these aspects and has
dismissed the application filed under Order VII Rule 11(d) of
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CPC. It is submitted that the suit is barred by limitation and
even that aspect is not considered by the Trial Court.
5. Learned counsel appearing for the
respondents/plaintiffs submits that the plaintiffs are not parties
to the compromise decree. All the judgments that are relied on
by the defendants do not apply to the facts of the present case
and it applies to the case where the parties to the compromise
decree file an independent suit. The Trial Court is also
conscious of all these aspect and has rightly considered the
facts. He submits that even if the ground of limitation is taken,
it is a mixed question of law and fact which cannot be
adjudicated by the Court in an application filed under Order VII
Rule 11(d) of CPC. He submits that the Trial Court has rightly
considered all the aspects of the matter in its proper
perspective and has come to a just and reasonable conclusion
which dos not require interference from this Court.
6. Having heard the learned counsel for the parties,
perused the material on record.
7. The contention of the defendant No.14/petitioner is
that a separate suit is not maintainable. This Court has perused
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the affidavit that is filed in support of the application under
Order VII Rule 11(d) of CPC. The whole thrust of defendant
No.14 is that the mother is a party to the compromise decree
which is binding on the children and as such, they cannot
maintain a separate suit and the plaint filed by them has to be
rejected. The contention raised on behalf of the defendant
No.14/petitioner cannot be considered and the Trial Court has
rightly considered all the aspects of the matter while passing
the impugned order. It is settled law that a party to
compromise petition cannot file a separate suit, just because
mother is a party to the compromise petition and, according to
the counsel for the petitioner, there is collusion between the
mother and children and children have filed a suit for partition.
Even that aspect, as to whether there is collusion or not, also
cannot be decided in an application under Order VII Rule 11(d)
of CPC. The contention that plaintiffs cannot maintain a
separate suit in view of the compromise decree also has no legs
to stand as the plaintiffs are not parties to the compromise and
the only remedy available to them is to file a separate suit. The
judgment relied on by the learned counsel for the petitioner do
not apply to the facts of the present case. All these aspects
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have been rightly considered by the Trial Court and this Court
finds no ground to interfere with the well considered order of
the Trial Court.
Accordingly, this Court is passing the following:
ORDER
i) The civil revision petition is dismissed.
ii) Pending I.As., if any, are closed.
Sd/-
JUSTICE LALITHA KANNEGANTI
KMS
CT:BCK
