IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.5796/2019 Between:
1. Smt. Bylamma, W/o. Rudraiah, D/o Late. Patel Chennegowda, Aged about 80 years, R/at Hunnigere Village, Sondekoppa Post, Dasanapura Hobli, Bangalore North Taluk-562 130.
Rept. Her S.P.A. Holder H.R.Shivanna, S/o. Rudraiah, Aged about 53 years, R/at Hunnigere Village, Sondekoppa Post, Dasanapura Hobli, Bangalore North Taluk-562 130.
2. Lakshmi Narayanappa S/o late. Lakshmamma, Aged about 53 years, 3. Smt. Karagamma D/o late. Lakshmamma, Aged about 50 years, Petitioner No.2 & 3 are R/at Gopalapura village, Dasanapura hobli, R. Gollahalli post, Bangalore north taluk-562 114.
(By Sri.Adinarayan & D.S.Mali Patil, Advocates) … Petitioners And:
1. Sri. Karibyrappa, S/o late. Patel Chennegowda, Aged about 90 years, 2. Byralingaiah, S/o late. Patel Chennegowda, Aged about 68 years, 3. Sri. L.C.Lakshmanaiah, S/o late Patel Chennegowda, Aged about 64 years, 4. Sri. Muniyappa S/o late Patel Chennegowda, Aged about 60 years, 5. Sri. L.C.Jayaramaiah, S/o late Patel Chennegowda, Aged about 56 years, 6. Smt. Lakshmamma, W/o Nanjundappa, Aged about 58 years, All are residing at Lakkenahalli village, Dasanapura hobli, Bangalore north taluk- 562 114.
Smt. Chennamma D/o late Patel Chennegowda, Since dead by her LR’s, 7(a). Sri. Moodalagiriyappa, S/o Late. Hanumantharayappa, Aged about years, 7(b). Smt. Lakshmamma W/o late. Nanjundappa, Aged about years, 7(c). Nagaraju S/o Late. Hanumantharappa, Aged about years, 7(d). Lalithamma W/o late. Nanjundappa, Aged about years, 7(e). Sri. Govindaraju, S/o Late. Hanumantharappa, Aged about years, 7(f). Sri. Rajanna, S/o Late. Hanumantharappa, Aged about years, Respondent No.7 (a) to 7 (f) are R/at Kadabagere village, Dasanapura hobli, Bangalore north taluk-562 114.
8. Smt. Nanjamma D/o late. Patel Chennegowda, Aged about 75 years, Residing at Ketavalla, Tavarekere hobli, Chunchguppa post, Bangalore south taluk – 562 130.
9. Smt. Mariyamma, D/o late. Patel Chennegowda, Aged about 73 years, R/at Keregowdanahalli village, Kasaba hobli, Mainahalli post, Nelamangala taluk – 562 123.
10. Smt. Manjula, W/o. R.Magadaiah, Aged about 35 years, R/at siddarameshwar Nagar, Batawadi, Tumkur district – 572 104.
(By Sri. B.K.Chandrashekar & Kempegowda N., Advocates for R2 to R6; Respondent No.7(a to f); R-10 served;
… Respondents Notice to respondent Nos.1, 8 and 9 dispensed with) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to call for the records from the learned Senior Civil Judge at Nelamangala in O.S.No.1144/2009 and after perusing the records, set aside the orders dated:19.12.2018 passed on I.A.filed under Order 23 Rule 3(1)(a) R/w Section 151 of CPC passed by the Senior Civil Judge at Nelamangala in O.S.No.1144/2009 vide Annexure-A and etc., This petition coming on for Orders this day, the court made the following:-
ORDER The petitioners being the plaintiffs in a suit for partition in O.S.No.374/2008 are invoking the writ jurisdiction of this Court for invalidation of the judgment and decree passed by the Court below in terms of settlement arrived in conciliation, alleging fraud, undue influence and coercion. The respondents having entered appearance through their counsel resist the Writ Petition.
2. Learned counsel for the petitioner-plaintiffs finds fault with the impugned order made on the ground that before disposing the suit in terms of the settlement, the Court below had not heard them, the contesting respondent had assured of paying a sum of Rs.10,00,000/- (Rupees Ten Lakh) to the petitioners after the settlement and this amount having not been paid, the settlement stands vitiated by fraud and coercion; these aspects having not been duly adverted to by the Court below, the counsel argues, the impugned order is liable to be invalidated.
3. Learned counsel for contesting respondents, per contra, contends that the settlement in question is not in dispute; it is signed by all parties; the said settlement was the result of a long drawn conciliation proceedings in which the parties participated a dozen times; the ground urged for invalidation of the order disposing of the suit in terms of the settlement does not constitute fraud or coercion at all; petition lacks in material particulars which are required to be pleaded under Order VI Rule 4 of CPC, which is applicable to the applications filed under Order XXIII Rule 3A r/w Section 151 of CPC for setting aside a compromise decree on the grounds that avail for avoiding the contract. So contending, he seeks dismissal of the Writ Petition.
4. Having heard learned counsel for the parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter for the following reasons:
(i) The suit for partition in O.S.No.1144/2009 has been decreed in terms of settlement achieved in the conciliation proceedings held in a dozen sittings; the claim that there was fraud and coercion in bringing out the amicable settlement is not founded on even minimum material particulars as to who, when and how they were perpetrated;
(ii) even otherwise also, the said assurance of paying Rs.10,00,000/- was allegedly made subsequent to settlement and therefore it does not constitute a ground for avoiding a contract and consequently does not avail as a ground for avoiding a compromise decree which is nothing but a contract with the seal of the court, superadded; the said assurance admittedly is not part of the bargain between the parties; in Sarcar’s Law of Evidence 19th Edition, Lexis Nexis Publication, at p.1809 it is stated:
“When a jural act is embodied in a single memorial all other utterances of the parties on the topic are legally immaterial for the purpose of determining what are the terms of their act. This rule is based upon an assumed intention on the part of the contracting parties, evidenced by the existence of the written contract, to place themselves above the uncertainties of oral evidence and on a disinclination of the Courts to defeat this object. When persons express their agreements in writing, it is for the express purpose of getting rid of any indefiniteness and to put their ideas in such shape that there can be no misunderstanding, which so often occurs when reliance is placed upon oral statements. Written contracts presume deliberation on the part of the contracting parties and it is natural they should be treated with careful consideration by the Courts and with a disinclination to disturb the conditions of the matters as embodied in them by the act of the parties. (See Mc. KELSEY’S Evidence p.294)”
This tersely stated position of law squarely applies to the present case;
(iii) the Apex Court in the case of ARJUNGOUDA vs.
ASHOK BASAVAPPA BASARKOD, (2007) 15 SCC 784 has held that in a proceeding filed for a declaration that compromise decree was null and void as having been obtained on misrepresentation and fraud allegedly perpetrated by the defendants on the plaintiffs side, a heavy onus lies on the plaintiffs to raise specific pleadings and substantiate the same by cogent evidence; this rule squarely applies to the case wherein a compromise decree is made on the basis of conciliation report which bears the signatures of all parties and that the same are not disputed; vaguely the grounds of fraud, coercion and undue influence are urged ungainfully; and (iv) the settlement specifically records that 16 guntas of land in question as described in Schedule A and B of the compromise petition has been allocated to the parties concerned; the court below having considered all aspects of the matter in its wisdom has made the impugned order which does not merit a deeper scrutiny at the hands of this Court, even otherwise also; the settlements arrived at in a conciliation proceeding cannot be lightly interfered without risking the sanctity of conciliation proceedings and the reputation of the conciliators.
6. Although this case appears to be a fit one for awarding exemplary cost, this Court with no joy in heart refrains from doing the same, inasmuch as a litigant challenging an order or a decree cannot ordinarily be worse off in his own proceedings.
In the above circumstances, Writ Petition being thoroughly meritless, stands rejected.
No costs.
Sd/- JUDGE DS