IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H.G.RAMESH WRIT PETITION NO.29044/2014 (GM-CPC) BETWEEN:
SRI GOPAL AMIN S/O LATE KORAPOLU @ RAJIVI AGED ABOUT 61 YEARS R/AT DODDI KATTA HOUSE BAJPE VILLAGE AND POST MANGALORE TALUK D.K.DISTRICT -575 001 ... PETITIONER (BY SRI A.KESHAVA BHAT, ADVOCATE) AND:
1. SMT. LOLAKSHMI W/O RUKKAYYA POOJARY AGED ABOUT 68 YEARS R/AT AMBELABETTU HOUSE KELINJARU VILLAGE KUPPEPADAV POST MANGALORE TALUK D.K.DISTRICT – 575 001 2. SMT. PRABHAVATHI W/O SRI GOPALAKRISHNA AGED ABOUT 55 YEARS R/AT MADAVU HOUSE & POST PUTTUR, D.K.DISTRICT – 575 001 3. SMT. PREMA @ PREMALATHA W/O SRI CHANDRAHAS POOJARY AGED ABOUT 50 YEARS R/AT ULIATHADKA SALETHUR POST BANTWAL TALUK D.K.DISTRICT – 575 001 4. SRI CHANDRASHEKARA S/O LATE B.SHEENAPPA AMIN AGED ABOUT 75 YEARS 5. SRI PADMANABHA S/O SRI SHEENAPPA AMIN AGED ABOUT 72 YEARS 6. SMT. REVATHI D/O SRI SHEENAPPA AMIN AGED ABOUT 70 YEARS 7. SMT. JANET W/O SRI RAMESH AGED ABOUT 59 YEARS 8. SMT. SAROJINI W/O LATE RAGHAVENDRA AGED ABOUT 67 YEARS 9. SMT. NAGAVENI W/O SRI RAMESH AND D/O LATE SHEENAPPA AMIN AGED ABOUT 65 YEARS 10. SMT. PUSHPAVATHI W/O SRI NARAYANA D/O LATE SHEENAPPA AMIN AGED ABOUT 63 YEARS 11. SMT. MALATHI @ BABY D/O LATE MANJUNATH AGED ABOUT 50 YEARS 12. SRI BABA S/O LATE MANJUNATHA AGED ABOUT 50 YEARS 13. SRI BOBBY S/O LATE MANJUNATHA AGED ABOUT 45 YEARS 14. SRI BIDAN S/O LATE MANJUNATHA AGED ABOUT 42 YEARS R4 TO R14 ARE R/AT KOTINIKETHANA HOUSE 3RD BLOCK, KATIPALLA MANGALORE – 575 001 15. SMT. YASHODA D/O LATE SUBBAPPA AMIN W/O LATE JAYASHEELA AGED ABOUT 65 YEARS 16. SMT. SHEELA D/O LATE SUBBAPPA AMIN MAJOR 17. SMT. ROHINI D/O LATE SUBBAPPA AMIN AGED ABOUT 58 YEARS R15 TO R17 ARE R/AT NEAR DHARMASTHANA CHITRALYA HOUSE, KARNADU MULKI D.K.DISTRICT – 575 001 18. MOHANDAS S/O LATE PADMAVATHI AGED ABOUT 60 YEARS R/AT DODDIKATTA PARARI HOUSE, BAJPE POST MANGALORE TALUK D.K.DISTRICT – 575 001 19. SMT. KUSUMAKSHI D/O KORAPOLU @ RAJIVI AGED ABOUT 69 YEARS 20. SMT. KAMALAKSHI W/O SRI LINGAPPA KOTIAN @ KARIYA POOJARY AGED ABOUT 69 YEARS R/AT INA HOUSE KULAVOOR VILLAGE KUPPEPADAV POST MANGALORE TALUK D.K.DISTRICT – 575 001 21. SRI VIJAY AMIN S/O LATE KORAPALU @ RAJIVI AGED ABOUT 63 YEARS 22. SMT. SULOCHANI W/O LATE NARAYANA AGED ABOUT 62 YEARS R19 TO R22 ARE R/AT DODDIKATTA HOUSE BAJPE VILLAGE AND POST MANGALORE TALUK D.K.DISTRICT – 575 001 23. THE SPECIAL LAND ACQUISITION OFFICER KIADB, BAIKAMPADY NEW MANGALORE – 575 001 ... RESPONDENTS (BY SRI G.RAVISHANKAR SHASTRY, ADVOCATE FOR R2 & R3; SRI VISHWANATHA POOJARY.K, ADVOCATE FRO R19 & R22; R1, R15, R18, R20 & R21 ARE SERVED & UNREPRESENTED; NOTICE TO R5, R7, R11 TO R14, R16 & R23 IS DISPENSED WITH V/C/O DATED 11.08.2014;
R4, R6, R8, R9, R10 & R17 ARE SERVED THROUGH PAPER PUBLICATION V/C/O DATED 03.09.2018) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 21.04.2014 (ANNEXURE-A) PASSED BY THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE ON I.ANO.III IN O.S.NO.124/2009.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R H.G.RAMESH, J. (Oral):
1. This writ petition is by defendant No.19 and is directed against the order dated 21.04.2014 whereby the trial Court has rejected IA.No.3 filed by him under Order XXIII Rule 3A of CPC to reject the plaint in the suit in O.S.No.124/2009.
2. I have heard the learned Counsel for the parties and perused the record.
3. The aforesaid application (IA.No.3) was filed to reject the plaint in view of Order XXIII Rule 3A of CPC as the said provision bars filing of a separate suit on the ground that the compromise on which the decree is passed was not lawful.
4. Learned Counsel for the petitioner in support of the writ petition relied on a decision of this Court in Syed Yusuff vs. Fathimabi [ILR 2009 KAR 510].
5. Admittedly, in the present suit in OS.No.124/2009, the compromise decree in the appeal in RA.No.25/1998 is sought to be set aside on the ground that the decree was obtained by fraud and misrepresentation. Hence, it cannot be disputed that Order XXIII Rule 3A of CPC applies to the facts of the case. If that be so, the impugned order dated 21.04.2014 is contrary to the law laid down by this Court in the aforesaid decision. Accordingly, it is set aside and the plaint in OS.No.124/2009 is rejected.
6. However, subject to all just exceptions, respondent Nos.1 to 3 (plaintiffs in the suit in OS.No.124/2009) are at liberty to make an appropriate application in accordance with law in the appeal in RA.No.25/1998 for setting aside of the decree made therein.
Petition disposed of.
Sd/- JUDGE LB