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2020 Supreme(Kar) 597
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
N.S. Sanjay Gowda, J.
Smt. Sushila W/o Shivashankarappa Hongal and ors. – Petitioners
Versus
Vijaykumar S/o Basavaraj Chikkumbi and ors. – Respondents
CRP No.100105 of 2016
Decided On : 06-07-2020
Advocate Appeared:
For the Petitioner:Sri. J.S. Shetty, Advocate
Headnote:
Hindu Succession Act – Civil Procedure Code - Section 151 - Order VII - Rule 11(A) - Possession of respective shares - Possess over land independently - Whether or not subject-matter of agreement compromise or satisfaction is same as subject-matter of suit - First respondent/plaintiff filed a suit seeking for partition and separate possession of his share in respect of suit A and B schedule properties - It was his case that suit schedule a properties were his ancestral and joint family properties and suit B schedule properties were also joint family properties of plaintiff and defendant Nos.1 to 11 which had been acquired by Karnataka Slum Clearance Board and Southwestern Railways - It was his case that suit properties had not been partitioned and that he was entitled to a legitimate share as per provisions of Hindu Succession Act - In his plaint he contended that defendant Nos.1 to 4 had filed seeking for partition and separate possession of their respective shares and in said suit he had been arrayed as defendant No.5 – However during pendency of suit against him was dismissed on basis of a memo filed by defendant Nos.1 to 4 - It was stated that after he was deleted from array of parties defendant Nos.1 to 4 had entered into compromise behind his back and said compromise decree did not bind him - He contended that with a view to get his separate and legitimate share he had filed present suit – Held, If arguments of learned counsel were to be accepted then a compromise entered into between two parties to a suit would bind not only parties to compromise but also to all other persons who may possess an independent and distinct right over property which was subject matter of compromise even if they are not parties to a compromise - This would result in an anomalous result and nullify rights of persons who have an independent right over property which was subject matter of a compromise and that cannot be intent of law - In other words if submission of learned counsel is accepted in a given case even a collusive compromise decree over a property would have effect of depriving all rights a third party may possess over land independently – This clearly would not be bar envisaged under R. 3A - Intent behind framing of Rule 3A is rather clear R. 3A basically intends to bar a party who has entered into a compromise and obtained a decree based on compromise to thereafter resale from compromise that he had entered into and contend it was unlawful by filing one more suit - A compromise is in nature of a binding contract between parties who have entered into a compromise are expected to abide by terms stated therein - It is for this reason that R 3A of O 23 creates a bar for those persons who are parties to compromise from filing a subsequent suit on ground that compromise obtained by them was unlawful - In other words a binding contract entered into between two parties in a court of law cannot be annulled or impugned by filing of a separate suit - It is also to be noticed here that a compromise between two parties is accepted by Court only if it is found to be lawful - Obviously once compromise is accepted as being lawful it would be a travesty of justice to permit parties to compromise to file a separate suit contending that it was unlawful – Court therefore of view that argument of learned counsel lacks merit - As far as reliance placed on decision of Hon’ble Supreme Court is concerned as could be noticed in case reported in Online itself in that case person who had filed a suit challenging compromise was claiming his rights under a person who was a party to compromise that had been entered into in said suit and in that context Apex Court had held that even if plaintiff was not a party bar under Rule 3A would apply – Appeal dismissal
ORDER :
1. This revision is filed challenging an order passed on IA. No. IX filed by the petitioner herein for rejection of the plaint under Order VII Rule 11(A) r/w Section 151 of CPC and Rule 3A of Order 23 of CPC.
2. Vijaykumar, the first respondent/plaintiff, filed a suit seeking for partition and separate possession of his 1/32nd share in respect of suit A and B schedule properties. It was his case that suit schedule a properties were his ancestral and joint family properties and suit B schedule properties were also the joint family properties of the plaintiff and defendant Nos.1 to 11, which had been acquired by the Karnataka Slum Clearance Board and Southwestern Railways. It was his case that the suit properties had not been partitioned and that he was entitled to a legitimate share as per the provisions of Hindu Succession Act.
3. In his plaint, he contended that defendant Nos.1 to 4 had filed O.S.No.545/2014 seeking for partition and separate possession of their respective shares and in the said suit, he had been arrayed as defendant No.5. However, during the pendency of the suit, the suit against him was dismissed on the basis of a memo filed by defendant Nos.1 to 4. It was stated that after he was deleted from the array of parties, defendant Nos.1 to 4 had entered into compromise behind his back and the said compromise decree did not bind him. He contended that with a view to get his separate and legitimate share, he had filed the present suit.
4. The defendant Nos.5, 6, 8, 10 and 11 filed an application requesting the Court to reject the plaint. It was contended that the suit properties were the subject matter of the earlier O.S.No.545/2014, which had ended in a compromise and the decree was based on the said compromise, had been acted upon and the plaintiff could not maintain the suit in view of the express bar under Order 23 Rule 3A of CPC.
5. The Trial Court, on consideration of the said application, came to the conclusion that the provisions of Rule 3A of Order 23 could be applied only to a person who was a party to the compromise and the said provision would have no application to a person who was not a party to the suit and therefore there was no bar for filing the present suit for partition by the plaintiff. The Trial Court, accordingly, rejected the application seeking for rejection of the plaint.
6. Sri J.S.Shetty, learned counsel appearing for the petitioners contended that Order 23 Rule 3A creates a complete bar for filing of any suit on the ground that the compromise on which the decree was based was not lawful. According to him, even a stranger to the compromise and a person who was not a party to the compromise decree would be hit by the bar under Order 23 Rule 3A for filing a suit in impugning the compromise.
7. In support of his arguments, he relied upon the judgment of the Apex Court in the case of Triloki Nath Singh Vs Anirudh Singh (D) Thr. Lrs. And Others reported in 2020 SCC Online SC 444 and also the decision in the case of Devineni Tirupathirayudu @ Ors. Vs Sirapaneni Suramma (D) by LRs @ Others) reported in 2009 DGLS (AHC) 573 (SC).
8. Admittedly, the first respondent herein had filed a suit for partition on the premise that he possessed a share in the suit properties, which according to him, were his joint family and ancestral properties and this right of his, was an independent and distinct right.
9. It was his specific case that any compromise decree obtained in respect of the suit properties, to which he was not a party, could not obviously bind him and he would be entitled to seek for his separate share by filing a suit, notwithstanding a compromise obtained between the other members of his family, who had chosen to exclude him from the compromise.
10. The submission of the learned counsel for the petitioner that the bar under Rule 3A of Order 23 would apply even to those persons, who were not parties to the compromise, cannot be accepted for the following reasons.
11. O.23 R3 and O.23 R 3A of the
