Dr. Shanker Prasad vs Smt. Lakshmi Devi And Ors
2023 Latest Caselaw 4941 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                           CIVIL REVISION No.93 of 2017
     ======================================================

Dr. Shanker Prasad, Son of late Bhagwan Das, Resident of Bakerganj Baripath, P.S. Pirbahore, District- Patna.

... ... Petitioner/s Versus

1. Smt. Lakshmi Devi, Wife of Ghanshyam Gupta, Resident of Mohalla- Gola Bazar, P.S. Buxar, District- Buxer.

2. Sri Chandra Shekhar Azad, Son of late Bhagwan Das, Resident of Bakerganj Baripath, P.S. Pirbahore, District- Patna.

3. Smt. Raj Kumari, Wife of Sri Vidya Sagar Gupta, Resident of Bankipur Gorakh , P.S. Fatuha, District- Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ganpati Trivedi, Sr. Advocate Mr. Abinash Kumar, Advocate Mr. Kumar Satyakirti, Advocate For the Respondent/s : Mr. J.S. Arora, Sr. Advocate Mr. Manoj Kumar, Advocate Mr. Ravi Bhatia, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 26-09-2023 Heard Sri Ganpati Trivedi, learned senior counsel

for the petitioner and Sri J.S. Arora, learned senior counsel for

the opposite party no. 1.

2. This Civil Revision application has been filed

against order dated 25.01.2017 passed by learned Sub Judge-

VI, Patna in Title Partition Suit No. 434 of 2013 whereby the

learned court below has rejected the petition of the petitioner

filed under Order VII Rule 11 and Section 11 of the Code of

Civil Procedure ( in short "CPC").

3. The brief facts of the case are that Patna High Court C.R. No.93 of 2017 dt.26-09-2023

plaintiff/opposite party no. 1 filed Title Partition Suit No. 434 of

2013. In the said suit plaintiff no. 1 Most. Kamla Devi ( died on

09.01.2014) is mother and plaintiff no. 2 Smt. Laxmi Devi is

sister of defendants. The defendant no. 1 Dr. Shankar Prasad had

filed a suit for partition in regard to joint family properties vide

T.S. No. 62 of 1992. It is claimed that defendant nos. 1 and 2

pursuaded their mother, plaintiff no. 1 not to take due share

since they will maintain her whole life with due respect and

regard and also persuaded plaintiff no. 2 and defendant no. 3

(sisters) not to take any share by reiterating the same assurance

which was given to the mother. A compromise petition was

prepared and the property was mainly allowed to be partitioned

between defendant nos. 1 and 2 and a decree of partition in

terms of compromise was passed therein on 29.04.1995. The

plaintiff no. 1 of this suit was given 1634 sq. ft. of land at

Kumhrar and also right to realize rent from a shop at Baripath,

Patna.

4. It is alleged that plaintiff no. 1 herein has never

been maintained by her sons i.e. defendant nos. 1 and 2 nor she

was allowed to ever collect rent from the shop at Baripath, Patna

and plaintiff no. 2 alone had taken care of her including her

medical expenses. Mother was forced to file Maintenance Case Patna High Court C.R. No.93 of 2017 dt.26-09-2023

No. 96 (M) of 2010 against defendant nos. 1 and 2. She had to

take loan for her survival and to repay the loan she had to sell

the said 1634 sq. ft. of land.

5. The present suit has been filed by plaintiffs since

the previous decree is a nullity and void on the ground that the

decree of partition was obtained by defendant nos. 1 and 2

illegally, unlawfully, fraudulently by practicing fraud upon

plaintiffs and also upon the court. The said compromise decree

is based on unlawful agreement is a nullity and void in the eye

of law. It is also stated that plaintiffs are also filing a separate

Misc. Case under Section 151 CPC to revoke, recall and cancel

the said decree passed in T.S. No. 62 of 1992. The said Misc.

Case No. 01 of 2013 (04 (A)/14) had been filed in the Court

concerned for setting aside the Judgment and decree dated

29.04.1995 passed in T.S. No. 62 of 1992 on the basis of fraud

committed upon them as defendant nos. 1 and 2 did not act

accordingly to the terms of the compromise. It appears that the

said Misc. Case was dismissed by detailed order dated

15.07.2017.

6. Learned senior counsel Mr. Ganpati Trivedi,

appearing for the petitioner submits that the Trial Court failed to

appreciate that admittedly the property involved in this suit had Patna High Court C.R. No.93 of 2017 dt.26-09-2023

already been partitioned under the previous compromise final

decree passed in Title Suit No. 62 of 1992 between the same

parties under Order XXIII Rule 3 of CPC and as per law under

Order XXIII Rule 3 A of the CPC, the fresh suit on the ground

of fraud shall not lie to set aside compromise decree in garb of

fresh partition suit.

7. Learned senior counsel for the petitioner further

submits that the plaintiff by clever drafting wants to get her suit

maintainable questioning the Compromise Decree, which

otherwise would not be maintainable. He further submits that it

is not in dispute that the plaintiff has already moved

miscellaneous case before the Court concerned for setting aside

the compromise decree, however, the same was dismissed by

the Court concerned. In substance, in the present suit has been

filed for setting aside the compromise decree although it is

stated as Title Partition Suit.

8. It is further submitted on behalf of petitioner that

as per the compromise final decree, passed in previous suit no.

62 of 1992, the petitioner had got constructed/ developed his

allotted properties and since the date of final decree, the

petitioner including his sons have been coming in separate

possession over his allotted area of property. The final Patna High Court C.R. No.93 of 2017 dt.26-09-2023

compromise decree dated 26.05.1995 has attained finality. The

mother Kamla Devi had already sold her alloted property and

thus partition took place by metes and bounds and is binding

against the plaintiffs and defendants. The defendant no. 1/

petitioner herein accordingly filed petition under Order VII Rule

11 read with Section 11 of CPC on 27.11.2015 which has been

wrongly dismissed by the impugned order observing that the

portion for determination is related to res-judicata which is

mixed question of law and fact which will be decided after

recording the evidence of the party ignoring that it is not only

the case of res-judicata but the suit is itself not maintainable in

view of the bar of suit under Rule 3-A of Order XXIII of CPC.

9. On the other hand, Mr. J.S. Arora learned senior

counsel appearing for plaintiff/ opposite party no. 1 has

submitted that the learned Trial Court has rightly rejected the

petition of the petitioner filed under Order VII Rule 11 CPC

which requires no interference by this Court. He has submitted

that the plaintiff has not challenged the compromise decree

passed in the earlier suit which was decreed on compromise in

which the plaintiff had relinquished her share on false promise.

Since the immovable property having value more than Rs. 100/-

which was said to have been relinquished by the said Patna High Court C.R. No.93 of 2017 dt.26-09-2023

compromise decree, the decree was compulsorily required to be

registered in view of the Section 17 of the Registration Act.

Accordingly, the said compromise decree passed in the earlier

suit has nullity in the eye of law and no right accrued to any

party from the said decree. The said decree is outcome of the

fraud committed on the plaintiff and upon the Court, passed on

unlawful agreement and the present suit is accordingly

maintainable.

10. Learned counsel for the opposite party no. 1 has

further submitted by referring the Judgment of Hon'ble

Supreme Court in (2019) 7 SCC 158 ( Madhav Prasad

Aggarwal and Another Vs. Axis Bank Limited and Another)

that if the plaint survives against certain defendant (s) and or

properties, Order 7 Rule 11 (d) CPC will have no application at

all, and the suit must then proceed to trial.

11. He has further submitted that the consequences

of non-registration of a document needing compulsory

registration are indicated in Section 49 of the Registration Act,

which provides to the effect that it shall not affect any

immovable property comprised therein, be received as evidence

of any transaction affecting any such property or conferring

such powers. Thus, the compromise decree did not convey right, Patna High Court C.R. No.93 of 2017 dt.26-09-2023

title and interest in the property.

12. Learned senior counsel for petitioner on the

point of requirement of registration of a compromise decree has

submitted that the exception engrafted in clause (vi) of Sub-

section (2) of Section 17 of Limitation Act is meant to cover that

decree or order expressed to be made on a compromise, which

declares the per-existing right and does not create new right,

title or interest in praesenti immovable property of Rs. 100 or

upwards. Compromise decree, if bonafide, in the sense that the

compromise is not a device to obviate payment of stamp duty

and frustrate the law relating to registration, would not require

registration.

13. Section 17(1) of the Registration Act, 1908

enumerates the various kinds of documents which need

compulsory registration. Sub-section (1) of Section 17 mandates

that the instrument enumerated in clause (a) to (e) shall be

registered compulsorily if the property to which they relate is

immovable property value of which is Rs. 100 or upwards.

Where the document purports or operates to create, declare,

assign, limit or extinguish, whether in present or in future, any

right, title or interest therein, whether vested or contingent, it

has to be registered compulsorily. Sub-section (2) of Section 17 Patna High Court C.R. No.93 of 2017 dt.26-09-2023

of the Act engrafts exceptions to the instruments cover only

clauses (b) and (c) of Sub-section (1). Clause (vi) of Sub-section

(2) relates to any decree or order of a Court, except a decree or

order expressed to be made on a compromise and comprising

immovable property other than that which is the subject matter

of the suit or proceeding. If the compromise memo extinguishes

the rights of one and seeks to confer right, title or interest in

favour of other, relating to immovable property of value of Rs.

100 and upwards, the document or record or compromise memo

shall be compulsorily registered. The Hon'ble Supreme Court

in Bhoop Singh Vs Ram Singh Major considered the question

as to under what circumstances an agreement made in writing

and incorporated in a decree of a Court needs compulsory

registration).

14. The Hon'ble Supreme Court vide judgment

dated 06.07.2021 Ripudaman Singh Vs Tikka Maheshwar

Chand (Civil Appeal No. 2336 of 2021) referred the

judgment reported in Kale and others Vs Deputy Director of

consolidation and others (1976) 3 SCC, Ravinder Kaur

Grewal and Others Vs Manjit Kaur and Others (2020)9

SCC 706, Bhoop Singh Vs. Ram Singh Major and Others

(1995) 5 SCC 709. K. Raghunandan and Others Vs. Ali Patna High Court C.R. No.93 of 2017 dt.26-09-2023

Hussain Sabir and Others (2008) 13 SCC 102 and larger

Bench judgment in Phool Patti and another Vs. Ram Singh

(Dead) through Lrs and Another (2015) 6 SCC 465 and

observed in paragraph 15 and 16 as under:

"15. The judgments of this Court in Bhoop Singh and K. Raghunandan was found to be inconsistent in an order reported in Phool Patti and Another Vs. Ram Singh (Dead ) Through Lrs. And Another (2009) 13 SCC 22 and the matter was thus referred to a larger Bench. The larger Bench in the judgment reported as Phool Patti and Another Vs. Ram Singh (Dead) Through Lrs. and Another (2015) 3 SCC 465 did not find inconsistencies between the two judgments.

16. Bhoop Singh was a case dealing with both the situations, decree between the parties where the decree holder does not have any pre- existing right in the property and also the situation where decree holder has a per-existing right. It was the second situation where the decree holder has a pre-existing right in the property, it was found that decree does not require registration. In K. Raghunandan case, the dispute was not amongst the family members but between neighbours regarding right over passage. Obviously, none of them had any pre-existing right over the immovable property in question."

15. Rule 3 A of Order XXIII CPC bars the suit to

set aside the decree on the ground that the compromise on

which decree was passed was not lawful. In Banwari Lal Vs.

Chando Devi (1993) 1 SCC 581 the Hon'ble Supreme Court

considered Rule 3 as well as Rule 3 A of Order 23 and held that Patna High Court C.R. No.93 of 2017 dt.26-09-2023

the object of the Amendment Act, 1976 is to compel the party

challenging the compromise to question the Court which has

recorded the compromise. Having introduced the proviso along

with explaination in Rule 3 in order to avoid multiplicity of suit

and prolonged litigation, a specific bar was prescribed by Rule

3-A in respect of institution of a separate suit for setting aside a

decree on the basis of a compromise.

16. In Pushpa Devi Bhagat Vs. Rajinder Singh,

(2006) 5 SCC 566 observed that no independent suit can be

filed for setting aside a compromise decree on the ground that

compromise was not lawful in view of the bar contained in Rule

3 A. It was further observed that a consent decree operates as an

estoppel and is valid and binding unless it is set aside by the

court which passed the consent decree, by an order on an

application under the proviso to Rule 3 Order 23.

17. In R. Rajanna Vs. S.R. Venkataswamy (2014)

15 SCC 471 and Trilokinath Singh Vs. Anirudh Singh (2020)

6 SCC 629 also considered the provisions of Order 23 Rule 3

and 3-A reiterated the same proposition that the only remedy

available to a party to a consent decree to avoid such consent

decree is to approach the Court which recorded the compromise

and separate suit is not maintainable.

Patna High Court C.R. No.93 of 2017 dt.26-09-2023

18. In the judgment dated 09.02.2022, M/s. Sree

Surya Developers and Promoters Vs. N. Sailesh Prasad and

Ors. (Civil Appeal No. 439 of 2022) the Hon'ble Supreme

Court in para 10.1 held as under:

"As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/ or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the Court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage."

19. This Court in Bhuneshwar Chaubey @ Duldul

Chaubey vs. Kalawati Devi and Others, vide order dated

09.11.2022 in Civil Revision No. 27 of 2020 observed as under:

" On plain reading of Order XXIII Rule 3-A of the Civil Procedure Code, it is apparent that no suit shall lie to set aside a decree on the ground that the compromise of which the decree is based was not lawful. Identical question was considered by the Hon'ble Apex Court in case of R. Janakiammal Vs. S.K. Kumarasamy (2021) 9 SCC 114. It was observed and held by the Hon'ble Court that Rule 3- A of Order XXIII bars the issue to set aside the decree on the ground that the compromise on which decree was not lawful. It is further observed and held that an agreement or compromise which is clearly void or voidable shall not be deemed to be lawful and the bar under Rule 3-A shall be attracted if compromise on the basis which the Hon'ble Apex Court had occasion to consider in detail Order XXIII of Rule 3 as well as Rule 3-A."

Patna High Court C.R. No.93 of 2017 dt.26-09-2023

20. It is further observed in the said order that there

is catena of decision on this point as referred in Banwari Lal

Vs. Chando Devi (1993) 1 SCC 581, Pushpa Devi Bhagat Vs.

Rajinder Singh & Ors. (2006) 5 SCC 566, Horil Vs. Keshav,

(2012) 5 SCC 525 and R. Ranjana Vs. S.R. Venkataswamy &

Ors. (2014) 15 SCC 471.

21. It was held therein that "Now, considering the

decisions of the Hon'ble Apex Court, it stands quite clear that a

separate suit for challenging compromise decree is barred under

Order XXIII, Rule 3A of the Civil Procedure Code. It is held

that such a challenge can only be examined by the Court, who

has allowed the compromise decree and not by any other court.

In order to look into justifiability of the case brought by the

aggrieved party."

22. This Court in Maharpato Devi Vs. Phulwaso

Devi reported in 2023 (3) PLJR 690 in paragraph 9 observed

as under :-

"9. The Hon'ble Supreme Court in Sree Surya Developers and Promotors vs. Sailesh Prasad and others reported in (2022) 5 SCC 736 dealt with the earlier decisions in R. Janakiammal vs. S. K. Kumaraswamy (D) Thr. Lrs. (2021) 9 SCC 114, R. Ranjanna vs. S. R.

Venkataswamy (2014)15 SCC 478, Triloki Nath Singh Vs. Anirudh Singh (2020) 6 SCC 629 and other judgments of Hon'ble Supreme Patna High Court C.R. No.93 of 2017 dt.26-09-2023

Court and observed that a party to a consent decree based on a compromise to challenge the compromise decree on ground that the decree was not lawful i.e. it was either void or voidable has to approach the same Court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable."

23. The Hon'ble Supreme Court in Madanuri Sri

Rama Chandra Murthy Vs. Syed Jalal 2017 (3) PLJR (SC)

59, held as under :

"The plaint can be rejected under Order VII Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order VII Rule 11, CPC can be exercised by the Court at any stage of the suit.

The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order VII Rule 11, CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order VII Rule 11 of CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when, the allegations made in the Patna High Court C.R. No.93 of 2017 dt.26-09-2023

plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order VII Rule 11 of CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end en at the earlier stage."

24. On the point of clever drafting and exercise of

power under Order 7 Rule 11 CPC the Hon'ble Supreme Court

in T. Arivandanam Vs. T.V. Satyapal & Another (1977) 4

SCC 467 it was observed that if on a meaningful- not formal-

reading of the plaint it is manifestly vexatious and meritless in

the sense of not disclosing clear right to sue, the Court should

exercise his power under Order 7 Rule 11 CPC taking care to

see that the ground mentioned therein is fulfilled. And, if clever

drafting has created the illusion of a cause of action, nip it in the

bud at the first hearing by examining the party searching under

Order 10 CPC and it was further observed and held that when

the suit is barred by any law, the plaintiff cannot be allowed to

circumvent that provision by means of clever drafting so as to

avoid mention of those circumstances, by which the suit is

barred by law of Limitation.

25. This Court in this proceeding is not required to

enter into the merits of the validity of the compromise Patna High Court C.R. No.93 of 2017 dt.26-09-2023

decree on the ground that the same has been obtained by

fraud or is required to be compulsory registration and the only

issue which is required to be considered by this Court is whether

the fresh suit is maintainable or not.

26. It is not in dispute that as such the plaintiff

has already moved an application before the Court concerned

under Order XXIII Rule 3 A CPC which passed the said decree

for setting aside compromise decree and thus, plaintiff has

already availed the proper remedy available in the law. The

remedy which is not directly available cannot be availed

indirectly by clever drafting. The filing of fresh suit which is

substantially based on declaring compromise decree as null and

void is an abuse of the process of law particularly when the

proper remedy has already been availed.

27. So far as the submission on behalf of the

plaintiff that in the suit the plaintiff has not specifically prayed

for setting aside the compromise decree and what is prayed is to

partition of the suit property but, mere perusal of the plaint it

appears that the suit is based on the pleading that previous

decree in suit for partition is nullity and void and no right

accrues to any party from the said decree. As discussed above, a

party to a consent decree based on a compromise to challenge

the compromise decree on the ground that the decree was not Patna High Court C.R. No.93 of 2017 dt.26-09-2023

lawful i.e. it was void or voidable has to approach the same Court,

which recorded the compromise and a separate suit challenging the

consent decree has been held to be not maintainable.

28. The prayer of partition of suit property is

basically challenging the previous compromise decree. A mere

clever drafting would not permit the plaintiff to make the suit

maintainable which otherwise is not maintainable. The plaintiff

knowing the same, had already filed Misc. Case challenging the

compromise decree before the concerned Court.

29. In view of the aforesaid facts and circumstances

and considering the submissions on behalf of the parties and the

legal position, it is held that the suit is liable to be rejected under

Order 7 Rule 11 (d) as not maintainable. The impugned order is set

aside. The stay granted by this Court in this case is vacated. The

plaint in Title Suit No. 434 of 2013 pending before Sub-Judge VI,

Patna/Successor Court stands rejected.

30. The Civil Revision is, accordingly, allowed.

31. Application (s), if any, stands disposed of.

(Sunil Dutta Mishra, J) khushbu/-

AFR/NAFR                AFR
CAV DATE                21.09.2023
Uploading Date          27.09.2023
Transmission Date