Madras High Court
S.Sankara Subramanian vs S.Pitchiah ... on 13 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 16.02.2022
DELIVERED ON 28.02.2022
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
C.R.P.(MD)No.203 of 2022
and
C.M.P.(MD)No.902 of 2022
S.Sankara Subramanian ...Petitioner/Petitioner/1st Defendant
Vs.
1.S.Pitchiah ...R-1/R-1/Plaintiff
S.Ramaiah (Since Deceased)
S.Thirikooda Rajappan (Since Deceased) ...Deceased/R-2 & R-3/D-2 & D-3
2.Dr.S.Krishnaswamy
3.S.Guhan ...R-2 & R-3/R-4 & R-5/D-4 & D-5
4.R.Anuradha Ramaiah
5.Ashok Ramaiah
6.Priya Bala Ramaiah
7.Suchila Rajappan
8.Balameena ...R-4 to R-8/LRs of the deceased
R-2 & R-3
[Accept the cause title petition filed for R-4 to R-8]
PRAYER: Civil Revision Petition under Article 227 of the Constitution of
India, to set aside the fair and decreetal order, dated 13.12.2021 passed by the
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2
learned Principal Subordinate Judge, Tenkasi, in I.A.No.60 of 2015 in
O.S.No.20 of 2014 and to reject the plaint.
For Petitioner :Mr.Pranav V.Shankar, for
Mr.V.Ramakrishnan
For R-1 :Mr.N.Rajasundara Sekaran, for
Mr.M.Ashok Kumar
For R-2 to R-7 :No appearance
ORDER
This Civil Revision Petition has been filed to set aside the fair and
decreetal order, dated 13.12.2021, in I.A.No.60 of 2015 in O.S.No.20 of 2014
passed by the learned Principal Subordinate Judge, Tenkasi.
2.The parties are referred to as per the rank mentioned before the Court
below.
3.The 1st respondent herein/plaintiff has filed a suit in O.S.No.20 of
2014 on the file of the learned Principal Subordinate Judge, Tenkasi, seeking
for a declaration that the compromise decree passed in O.S.No.31 of 1985
dated 29.06.1985 as null and void and consequential injunction restraining
the proceedings of I.A.No.149 of 2007 and also seeking declaration that the
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Will No.81 of 2006 is valid and a consequential injunction to give effect to
the said Will, as against the plaintiff and the siblings of him. During the
pendency of the aforesaid suit, the revision petitioner/1st defendant has filed a
interlocutory petition in I.A.No.60 of 2015 in O.S.No.20 of 2014 under Order
7 Rule 11 of Civil Procedure Code to reject the plaint in O.S.No.20 of 2014.
The said petition was dismissed on 13.12.2021. Against the said dismissal
order, the appellant herein/1st defendant is before this Court.
4.Heard on either side. Perused the material documents available on
record.
5.This Civil Revision Petition is filed on the ground that the learned
Court below has failed to note that the date of Compromise Decree was
passed on 29.06.1985 in O.S.No.31 of 1985 and the date of Will was
14.02.2001 and the Death of mother was on 04.12.2001 and the date of filing
of the suit in O.S.No.20 of 2014 was on 05.12.2003. The Court below has
failed to note that compromise decree passed as early as 1985 and the mother
of the petitioner not questioning the compromise during her lifetime and in
such circumstances the suit is clearly barred. The Court below have rejected
the plaint both on the ground of non maintainability of suit as per Order 23
Rule 3A and Limitation. The Court below has failed to advert to provisions
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of Order 7 Rule 11 of Civil Procedure Code while considering the facts of the
case.
6.The petition in I.A.No.60 of 2015 was filed by the revision
petitioner/1st defendant, under Order 7 Rule 11 of Civil Procedure Code to
reject the plaint which was dismissed by the learned Principal Subordinate
Judge, Tenkasi. Aggrieved by the said dismissal order, dated 13.12.2021, the
revision petitioner is before this Court.
7.The 1st respondent/plaintiff has filed the suit in O.S.No.20 of 2014
for declaring that the compromise decree, dated 29.06.1985 in O.S.No.31 of
1985 is null and void and also sought for consequential reliefs.
8.The compromise decree, dated 29.06.1985 was passed in O.S.No.31
of 1985, which was filed by the 4th defendant in the present suit in which
compromise decree was passed.
9.The revision petitioner has filed the petition in I.A.No.60 of 2015 to
reject the plaint on the ground that the suit was barred under Order 23 Rule
3A of Civil Procedure Code.
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10.The ingredients of Order 23 Rule 3A of Civil Procedure Code is
extracted hereunder:
“3-A.Bar to suit :-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 Judgment reported in 2022 Live Law S.C. 143, M/s.Sree Surya
Developers and Promoters Vs. N.Sailesh Prasad and Ors and M/s.Raja
Pushpa Properties Pvt. Ltd., Vs. N.Sailesh Prasad and Ors., in which the
Hon'ble Supreme Court held as follows;
“11.If we consider the reliefs of declaration of
title, recovery of possession, cancellation of
revocation of Gift Deed, declaration for DGPA and
Deed of Assignment-cum-DGPA, the said reliefs can
be granted only if the Compromise Decree dated
13.01.2016 passed in O.S.No.1750 of 2015 is set
aside. Therefore, by asking such multiple reliefs, the
plaintiff by clever drafting wants to get his suit
maintainable, which otherwise would not be
maintainable questioning the Compromise Decree.
All the aforesaid reliefs were subject matter of earlier
suits and thereafter also subject matter of O.S.No.
1750 of 2015 in which the Compromise Decree has
been passed. Therefore, it is rightly held by the Trial
Court that the suit in the present form and for the
reliefs sought would be barred under Order XXIII
https://www.mhc.tn.gov.in/judis Rule 3A CPC and therefore the Trial Court rightly
rejected the plaint in exercise of powers under Order
VII Rule 11(d) of the CPC. The High Court has
erred in setting aside the said order by entering into
the merits of the validity of the Compromise Decree
on the ground that the same was hit by Order XXXII
Rule 7 of CPC, which was not permissible at this
stage of deciding the application under Order VII
Rule 11 CPC and the only issue which was required
to be considered by the High Court was whether the
suit challenging the Compromise Decree would be
maintainable or not.
12.As observed hereinabove and it is not in
dispute that as such the respondent No.1 – original
plaintiff has already moved an appropriate
application before the concerned Court, which
passed the decree setting aside the compromise
Decree by submitting an application under Order
XXIII Rule 3A CPC therefore the said application
will have to be decided and dispose of in accordance
with law in which all the defences/contentions which
may have been available to the respective parties on
the validity of the Compromise Decree would have to
be gone into by the concerned court in accordance
with law and on its own merits.”
12.The plaintiff is also a party in O.S.No.31 of 1985. Admittedly, the
plaintiff was also entered into compromise. But, now, he objected the
compromise decree on the basis that the property shown in the suit in
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O.S.No.31 of 1985 are not ancestral property of Balammal and only self
acquired property of Balammal. So, there was a fraud played by the plaintiff
in O.S.No.31 of 1985.
13.The plaintiff in the present case is also a party in the suit in O.S.No.
31 of 1985. After understanding the averments in the plaint only he entered
into the compromise. The ruling reported in AIR 1993 SC 1139, which was
relied by the Court below is not at all applicable in the present suit. In the
reported case, the plaintiff has raised a plea of fraud in preparing the
compromise.
14.Further, the compromise decree was passed on 29.06.1985. The
plaintiff in the present suit is also party to the suit. He has filed the suit after
lapse of 29 years to set aside the compromise decree, i.e., 2014.
15.There is no doubt while deciding Under Order 7 Rule 11 petition
only the pleadings in the plaint to be looked into. Even, as per pleading the
suit is barred under Order 23 Rule 3A of Civil Procedure Code and also
barred by limitation.
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16.The plaintiff should file the suit for declaration of any decree as null
and void within a period of three years.
17.Eventhough, it is not raised by the revision petitioner, it is question
of law and need not be raised by the revision petitioner.
18.There is no pleadings raised by the plaintiff that what are the terms
are unlawful and against law to set aside the compromise decree.
19.In view of the foregoing discussions, this Court is inclined to
interfere with the order passed by the Court below in I.A.No.60 of 2015 in
O.S.No.20 of 2014.
20.Accordingly, this Civil Revision Petition is allowed by setting aside
the order, dated 13.12.2021 in I.A.No.60 of 2015 in O.S.No.20 of 2014,
passed by the learned Principal Subordinate Judge, Tenkasi. No Costs.
Consequently, connected miscellaneous petition is closed.
Index :Yes/No 28.02.2022
Internet:Yes/No
ksa
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Note:In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy, shall be the
responsibility of the Advocate/litigant concerned.
To
The Principal Subordinate Court,
Tenkasi.
https://www.mhc.tn.gov.in/judis
S.ANANTHI, J.
ksa
Order made in
C.R.P.(MD)No.203 of 2022
28.02.2022
https://www.mhc.tn.gov.in/judis
