IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT C.R.P. No.337/2019 BETWEEN:
1. SRI. HARI BHAT S/O. SHRINIVASA BHAT AGED ABOUT 76 YEARS R/O. ‘PADMASHREE’ OPP: KAUP BEEDU NH-66, KAUP, UDUPI TALUK UDUPI DISTRICT- 574106.
2. SANJAY BHAT S/O. SRI. HARI BHAT AGED ABOUT 44 YEARS R/O. ‘PADMASHREE’ OPP: KAUP BEEDU NH-66, KAUP, UDUPI TALUK UDUPI DISTRICT -574106.
(BY SRI. PRASAD HEGDE K B, ADV.) ... PETITIONERS AND:
SRI. RAGHUPATHI NAYAK S/O. PANDURANGA NAYAK AGED ABOUT 59 YEARS RESIDENT OF KAUP NEAR HALEMARIGUDI TEMPLE KAUP, UDUPI TALUK UDUPI DISTRICT- 574106 ... RESPONDENT THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 29.06.2019 PASSED ON APPLICATION (I.A.XII) IN O.S.NO.164/2015 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI, REJECTING THE APPLICATION I.A.XII FILED UNDER SECTION 151 OF CPC.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners are before this Court under Section 115 of CPC assailing the order dated 29.06.2019 passed on I.A.No.12 in O.S.No.164/2015 on the file of the II Additional Civil Judge at Udupi.
2. The brief facts of the case are that:
The respondent herein filed O.S.No.164/2015 on the file of the II Additional Civil Judge and Additional Civil Judge at Udupi against the petitioners herein seeking for vacant possession of plaint ‘A’ schedule premises and for arrears of rent. During the pendency of the suit, the petitioners and respondent herein filed a joint memo/compromise petition under Order XXIII Rule 3 of CPC. The said joint memo/compromise petition reads as follows:
1. That the Plaintiff and Defendants, at the intervention of Grahastas have come of the following terms of settlement:
2. That the Defendants has agreed to hand over the vacant possession of plaint schedule premises to the Plaintiff.
3. That the Defendant has agreed to pay entire arrears of rent at the rate of Rs.6,000/- per month till this date.
4. That the Defendant has agreed to pay rent at the rate of Rs.10,000/- per month from this day till vacating the premises.
5. That the Plaintiff and Defendants have agreed that the Defendants shall hand over the vacant possession of plaint schedule premises within 1 ½ years from this day on or before 31/07/2019 without fail.
6. Till the premises is vacated (i.e. 24.02.2018 to 31.07.2019) the Plaintiff will not interfere with the schedule premises where Defendant is carrying on business.
7. The premises rent of Rs.10,000-00 to be paid from 24.02.2018 till the premises is vacated will be deposited to the Bank Account of the Plaintiff by the Defendants (State Bank of India, Kaup Branch, bearing Bank Account No.20164520105, IFSC Code-SBIN0017794 of Son of the Plaintiff by name Panduranga Nayak) 8. Therefore Compromise Decree may be passed in terms of Joint Memo.”
3. In pursuance of filing of the joint memo/ compromise petition, the learned Trial Judge accepted the same on 26.02.2018. Under the compromise, petitioners were granted time up to 31.07.2019 to vacate the premises. Further, it was also agreed that the petitioners shall pay Rs.10,000/- as monthly rent from 24.02.2018 till vacation of the premises. Subsequently, the petitioners on 13.02.2019 filed an application under Section 151 of CPC to set aside the compromise dated 26.02.2018 entered into between the petitioners and respondent and to decide the suit on merits. In the affidavit accompanying the application, it is stated that the compromise is the result of misrepresentation and misunderstanding. It is further stated that the petitioners have never agreed to surrender the premises either on or before 31.07.2019 or any other date. Further, the petitioners stated that the plaintiffs have misrepresented the fact and the counsel for the petitioners also not guided them properly. Compromise is the result of misrepresentation and concealment of fact.
4. The said application was opposed by the respondent by filing objections, denying the application averments. It is stated that after understanding clearly the terms and conditions of the compromise, they have consented for the same. The learned Trial Judge after hearing both the parties, by impugned order rejected the application I.A.No.12 filed under Section 151 of CPC. Aggrieved by the same, the petitioners are before this Court.
5. Heard the learned counsel for the petitioners.
Perused the petition papers.
6. Learned counsel for the petitioners would submit that the petitioners have never consented for paying arrears of rent of Rs.1,44,000/- and rent of Rs.10,000/-
p.m. and to vacate the premises on or before 31.07.2019. It is his contention that the compromise is the result of misrepresentation and they were not informed of the actual fact. It is further stated that the trial Court ought to have held an enquiry permitting the parties to lead evidence in this regard as to whether the compromise is lawful, valid or not?
7. The respondent/plaintiff filed suit in O.S.No.164/2015 for eviction of petitioners herein and for arrears of rent. The suit was contested by filing objections. During the course of trial, the parties filed an application under Order 23 Rule 3 of CPC wherein the petitioners herein agreed to pay Rs.10,000/- p.m. as rent from 24.02.2018, the date on which, compromise petition was filed. The compromise petition is signed by both the petitioners who are defendants in the suit and also by the plaintiff who is respondent herein along with their respective advocates. After nearly one year from the date of entering into compromise, the petitioners herein filed an application under Section 151 of CPC to recall the compromise entered into under Order XXIII Rule 3 of CPC dated 26.02.2018 and to decide the suit on merits on the ground that the plaintiffs have misrepresented the fact and their counsel has not guided them properly. In fact, learned counsel for the petitioners submits that the petitioners have not initiated any action against their counsel who according to the petitioners has not guided them properly and also not informed the terms of the compromise.
8. When the petitioners have signed the compromise petition with their open eyes and who are not illiterates, it is not open for them to contend at this stage that they are not aware of the terms of compromise. From the application it could be seen that it is only an afterthought and to postpone the handing over vacant possession of the premises, the present application appears to have been filed. At the time of compromise, which is recorded by the trial Court on 26.02.2018, the trial Court has observed as follows:
“This suit coming on 26.02.2018 for disposal before me in the presence of plaintiff and defendants and Sri.B.Nagaraj, Advocate for plaintiff and Sri.P.Vikram Acharya, Advocate for defendants and both the parties and their counsel filed joint memo/ compromise petition U/O.XXIII Rule 3 of CPC and praying for Compromise decree and in pursuance of compromise petition and hearing both the parties, this Court doth hereby order and decree ”
A reading of the above indicates that Advocates for both the plaintiff and defendants were present before the Court at the time of compromise petition and the Court recorded the compromise between the parties.
9. No doubt, the application filed under Section 151 of CPC to set aside the compromise decree would be maintainable before the Court, which had recorded the compromise. The Court, before application is made for setting aside compromise decree shall only examine whether the compromise entered between the parties was lawful or not? If the compromise is fraudulent, then such decree shall be void and would not be lawful. It is for the party who seeks for setting aside compromise decree to prima facie demonstrate that fraud has been played while entering into compromise.
It is for the party who approaches the Court with application to set aside compromise decree to establish that there was no compromise. When such application is filed the Court has to decide as to whether the compromise decree was lawful or valid. In the case on hand except stating that the action of the plaintiff amounts to fraud, no particulars or how fraud has been played has not been explained. Mere saying that fraud has been played would not be sufficient to entertain the application. The compromise was entered into on 26.02.2018. Under compromise, petitioners consented for vacating the suit schedule premises on or before 31.07.2019. Only when the time to vacate the premises was nearing, that too after nearly one year from date of compromise decree, the application for setting aside the decree was filed only in February 2019. When the petitioners have failed to prima facie establish that compromise decree is not lawful, the trial Court is justified in rejecting the application.
10. No ground is made out by the petitioners and the trial Court has not committed any material or jurisdictional irregularity, so as to interfere with the impugned order. Accordingly, the revision petition is dismissed.
In view of dismissal of the revision petition, I.A.No.1/2019 for stay does not survive for consideration and the same is dismissed.
Sd/- JUDGE mpk/-* CT:bms