IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI REGULAR FIRST APPEAL No.1807 of 2017 (DEC) BETWEEN :
1. SRI.M.KRISHNAIAH SHETTY SON OF LATE M.RAMAIAH SHETTY AGED ABOUT 56 YEARS RESIDING AT NO.71/1, “G” STREET JOGUPALYA, USOOR BANGALORE – 560 008.
2. SMT.P.T.NALINI WIFE OF ASWATHNARAYANA AGED ABOUT 66 YEARS RESIDING AT NO.71/1, “G” STREET JOGUPALYA, USOOR BANGALORE – 560 008.
... APPELLANTS (BY SRI.VIKHAR AHMED.B., ADVOCATE) AND:
1. LATE KESHAVA MURTHY SON OF LATE MUNISHAMI HUSBAND OF LATE ANUSUYA AGED ABOUT 78 YEARS (SINCE DECEASED REPRESENTED BY HIS LEGAL HEIRS - RESPONDENT NO. 2 TO 6) 2. SMT.SHOBA WIFE OF LATE BHASKAR REDDY DAUGHTER-IN-LAW OF KESHAVA MURTHY AND LATE ANUSUYA AGED ABOUT 43 YEARS 3. SMT.KAVYA DAUGHTER OF LATE BHASKAR REDDY AND GRAND DAUGHTER OF KESHAVA MURTHY AND LATE ANUSUYA AGED ABOUT 22 YEARS 4. SMT.NAVYA DAUGHTER OF LATE BHASKAR REDDY AND GRAND DAUGHTER OF KESHAVA MURTHY AND LATE ANUSUYA AGED ABOUT 20 YEARS 5. SRI.MOHAN SON OF KESHAVA MURTHY AND LATE ANUSUYA AGED ABOUT 50 YEARS 6. SMT.MANJULA DAUGHTER OF KESHAVA MURTHY & LATE ANUSUYA AGED ABOUT 39 YEARS NO.1 TO 6 ARE RESIDING AT NO.71/1, NEW NO.148, “G” STREET JOGUPALYA, USOOR BANGALORE - 560 00.
7. SRI.JAYESH KUMAR AGED ABOUT 43 YEAS SON OF LATE MULTAN MALJI 8. SMT.BADAMI DEVI AGED ABOUT 57 YEARS WIFE OF M.CHAMPAL SHAH 9. SMT.SEEMA DEVI AGED ABOUT 53 YEARS WIFE OF M.MOHANLAL SHAH 10. SMT.SAYARI DEVI AGED ABOUT 45 YEARS WIFE OF SURESH KUMAR SHAH NO.7 TO 10 ARE RESIDING AT NO.37/2, MAHANTH LAYOUT BULL TEMPLE ROAD BANGALORE – 19.
... RESPONDENTS (BY SRI.RAJESWARA.P.N., ADVOCATE A/W SRI.NARAYANA RAO FOR C/R-7 TO R-10, R-5 SERVED, R-1 DEAD, REP BY R-2 TO R-6) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96(1) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER DATED 30.08.2017 PASSED ON I.A.NO.2 IN O.S. NO.7337/2016 ON THE FILE OF THE XI ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, ALLOWING THE I.A. NO.2 FILED UNDER ORDER 7 RULE 11(d) OF CPC., FOR REJECTION OF PLAINT AND ETC., THIS REGULAR FIRST APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for hearing on interlocutory application – I.A.No.1/2019 for vacating the order of stay granted by this Court on 29.05.2019, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant was the plaintiff in O.S.No.737/2016.
The said suit was filed by him seeking the following reliefs:-
“Wherefore, the plaintiff above named humbly prays that this Hon’ble Court may be pleased to pass judgment and decree against the defendant;
(a) Declare that the compromise decree dated 01.02.2000 obtained by the defendants – 7 to 10 is by way of fraud, coercion and misrepresentation in O.S. No.6350/1999 and it is null and void and not binding on the plaintiffs.
(b) Granting Permanent Injunction against the defendants restraining them in any manner – either by themselves or through their agents or henchmen and any other person claiming through them from interfering with the peaceful possession and enjoyment of the Plaintiffs’ suit schedule property ‘B’ and ‘C’.
(c) Directing the Defendants to pay the Plaintiffs the cost of the suit and grant such other reliefs that this Hon’ble Court deems fit to be grant in the circumstances of the case, in the interest of justice and equity.
The said reliefs were sought in respect of the suit schedule properties.
3. Subsequent to the filing of the said suit, suit summons were issued to the defendants and defendant Nos.8 to 10 appeared in the matter and filed written statement as well as an application under Order VII Rule 11 (d) of Code of Civil Procedure, 1908 (CPC). The plaintiff filed his statement of objections to the said application. On hearing the respective parties, by the impugned order dated 30.08.2017, the XI Additional City Civil Judge, Bangalore City, allowed the said application (I.A.No.2) and consequently, rejected the plaint. Being aggrieved, the plaintiff has preferred this appeal.
4. We have heard learned counsel for the appellants / plaintiffs and learned counsel for respondent Nos.7 to 10, who are the contesting respondents. Respondent No.5 is served and notice to other respondents has been issued, but not served insofar as respondent Nos.2 to 4 and 6 are concerned. However, it is to be observed that contesting respondents are respondent Nos.7 to 10 herein, whose counsel have been heard in the matter.
5. Briefly stated the facts of the case are that Smt.Anusuya had entered into an agreement to sell the suit schedule properties to the appellants / plaintiffs vide agreement of sale dated 12.01.1998. She also entered into an agreement of sale with defendant Nos.7 to 10 on 23.06.1998. That the said Anusuya had also mortgaged the suit schedule properties in favour of M/s.Grain Merchants Co-operative Bank Ltd., on 13.01.1999. When the matter stood thus, O.S.No.6350/1999 was filed by defendant Nos.7 to 10 before the trial Court seeking the relief of specific performance of the agreement to sell dated 23.06.1998. On 01.02.2000, the said suit ended in a compromise decree as Anusuya consented to the prayers and reliefs sought for by the plaintiffs in the said suit. Subsequently, Anusuya conveyed the suit schedule properties in favour of the plaintiffs under the registered sale deeds dated 28.11.2001 and 21.08.2004 in respect of ‘B’ and ‘C’ schedule properties respectively. Subsequent to the compromise decree passed in O.S.No.6350/1999 dated 01.02.2000, respondent Nos.7 to 10 filed execution petition No.2525/2002 seeking execution of the said compromise decree. In the said execution proceedings, two separate applications were filed by the appellants under Order XXI Rules 97 and 101 read with Section 151 of CPC. By a common order dated 06.3.2013, the said applications were dismissed. Being aggrieved, the appellants herein filed RFA No.502/2013 before this Court.
6. A Co-ordinate Bench of this Court by its judgment dated 11.08.2016 disposed of the appeal by permitting the appellants to withdraw the appeal. Infact, RFA No.1307/2013 was also preferred by the appellants herein assailing the compromise decree dated 01.02.2000 passed in O.S.No.6350/1999. The said appeal was permitted to be withdrawn with liberty to the appellants to avail an appropriate remedy available in law as against the impugned decree dated 01.02.2000 passed by the Court of XI Additional City Civil Judge, Bengaluru City in O.S.No.6350/1999. In view of the judgment passed in RFA No.1307/2013, RFA No.502/2013 was also permitted to be withdrawn. Subsequently, the plaintiffs herein preferred O.S.No.7337/2016 seeking the aforesaid reliefs. By the impugned order dated 30.08.2017, the plaint has been rejected. Being aggrieved, this appeal has been preferred.
7. As noted above, we have heard learned counsel for the appellants and learned counsel for respondent Nos.7 to 10 extensively and perused the material on record.
8. Appellants’ counsel contended that the appellants are presently the owners of the ‘B’ and ‘C’ schedule properties, which were also the subject matter of the agreement of sale dated 12.01.1998 and conveyance followed by a virtue of sale deed being executed in their favour on 28.11.2001 and 21.08.2004. It is in respect of the very same properties, the vendor of the appellants namely, Anusuya executed an agreement of sale dated 23.06.1998 in favour of respondent Nos.7 to 10, who were defendant Nos.7 to 10 in the suit, out of which the present appeal arises. He also submitted that the said properties were also the subject matter of mortgage vide mortgage deed dated 13.01.1999 made by Anusuya in favour of M/s.Grain Merchants Co-operative Bank Ltd.,. That when the appellants herein had an agreement of sale dated 12.01.1998, there could not have been a subsequent agreement of sale made by Anusuya in favour of defendant Nos.7 to 10 on 23.06.1998. Although there was a suit for specific performance filed by the said defendants in O.S.No.6305/2009, which ended in compromise decree on 01.02.2000, nevertheless, Anusuya executed the registered sale deed in favour of the appellants.
They have become the owners of the said ‘B’ and ‘C’ schedule properties. Therefore, being aggrieved by the compromise decree, they filed an application under Order XXI Rules 97 and 101 read with Section 151 of CPC, in Execution petition No.2525/2002 filed by the respondent Nos.7 to 10 herein for execution of the compromise decree dated 01.02.2000 but the said applications were dismissed by the Executing Court and assailing the same RFA No.502/2013 was filed before this Court. Appellants also being aggrieved by the collusive compromise decree dated 01.02.2000, filed RFA No.1307/2013 before this Court. But the aforesaid appeals were withdrawn by the appellants in RFA No.1307/2013, where liberty was reserved to the appellants to avail any other appropriate remedy in law. That it is on the strength of the said liberty, O.S.No.7337/2016 was filed by the appellants and that the trial Court has erroneously rejected the plaint under Order VII Rule 11(d) of the CPC. That the appellants were not parties to the compromise decree and therefore, they could not have sought for recalling of the compromise decree in terms of Order XXIII Rule 3A of the CPC and that they also could not have filed an appeal as such. Therefore, they filed the suit contending that the said compromise decree was not binding on them. They also sought for consequential reliefs of permanent injunction in respect of the suit schedule properties, as they are the owners and are in possession of the properties. The trial Court could not have rejected the plaint and cut short the trial, thereby curtailing their right, title and interest in the suit schedule properties of the appellants. He submitted that the rejection of the plaint may be set aside and the matter may be remitted so that the trial Court can consider and dispose of the suit in accordance with law.
9. Per contra, learned counsel for respondent Nos.7 to 10 supported the impugned judgment and decree of the trial Court. He contended that RFA Nos.502/2013 and 1307/2013 were filed by the appellants before this Court challenging the order passed by the Executing Court under Order XXI Rules 97 and 101 read with Section 151 of CPC and also challenging the compromise decree passed in O.S.No.6350/1999. But the appellants for the best reasons known to them, have withdrawn the said appeals and thereafter have filed O.S.No.7337/2016. That the said suit is hit by principles of res judicata, and it is not maintainable. That the trial Court has rightly appreciated the said aspect of the matter and has rejected the plaint. That there is no infirmity in the judgment and decree of the trial Court and therefore, the appeal may be dismissed as there is no merit in the appeal. It is further contended that the suit was not maintainable in view of the bar under Order XXIII Rule 3A of the CPC.
10. Having heard learned counsel for the respective parties, the following points would arise for our consideration:-
1. Whether the trial Court was justified in rejecting the plaint under Order VII Rule 11(d) read with Order XXIII Rule 3A of the CPC?
2. What order?
11. The detailed narration of facts and contentions would not call for reiteration except highlighting the fact that Anusuya had entered into an agreement of sale dated 12.01.1998 with the appellants / plaintiffs and with defendant Nos.7 to 10 on 23.06.1998 in respect of the same suit schedule properties. Respondent Nos.7 to 10 filed O.S.No.6350/2009 seeking specific performance of agreement of sale dated 23.06.1998. The said Anusuya consented to the reliefs sought for by respondent Nos.7 to 10 herein and O.S.No.6350/2009 was decreed by a compromise. The said compromise decree was sought to be executed in Execution petition No.2525/2002. But by then, Anusuya had conveyed ‘B’ and ‘C’ schedule properties to the plaintiffs i.e., on 28.11.2001 in respect of ‘B’ schedule property and subsequently, on 21.08.2004 in respect of ‘C’ schedule property. Therefore, the plaintiffs filed their applications under Order XXI Rules 97 and 101 read with Section 151 of CPC, in the form of objectors application, which was dismissed by the Executing Court on 06.03.2013. They filed RFA No.502/2013, being aggrieved by the order dated 06.03.2013 passed in Execution Petition No.2525/2002 before this Court. Appellants also challenged the compromise decree before this Court in RFA No.1307/2013.
12. Though the appeals were not connected, nevertheless two separate orders were passed, and on 11.08.2016. The appeal was disposed by judgment in RFA No.1307/2013, which was the appeal challenging the compromise decree passed in O.S.No.6350/1999, in the following terms:
1. Sri.Y.R.Sadasiva Reddy, learned Senior Counsel, after arguing the matter for some time, seeks leave to withdraw the appeal with liberty to the appellants to avail of the appropriate remedy available in law as against the impugned order dated 01.02.2000 passed by the Court of XI Additional City Civil Judge, Bengaluru City, in the suit in O.S. No.6350/1999.
2. Leave and liberty sought for is granted. The appeal is accordingly disposed of as withdrawn. In view of disposal of the appeal, all pending interlocutory applications do not survive for consideration; they stand disposed of accordingly.
3. In view of withdrawal of the appeal and in the light of a Division Bench decision of this Court in Gayathri.V.Indira Rajashekar [ILR 2000 KAR 3002], the appellants are entitled for refund of fifty percent of the court fee paid on the appeal memorandum. Accordingly, Registry shall refund to the appellants, fifty percent of the court fee paid on the appeal memorandum.
Appeal disposed of.”
13. Simultaneously, the judgment of this Court in RFA No.502/2013 which was disposed of on the same day reads as under:-
1. Sri.Y.R.Sadasiva Reddy, learned Senior Counsel, after arguing the matter for some time, seeks leave to withdraw this appeal in view of withdrawal of the connected appeal in R.F.A. No.1307/2013.
2. Leave sought for is granted. The appeal is accordingly disposed of as withdrawn. In view of disposal of the appeal, I.A. No.1/2013 filed for interim stay does not survive for consideration; it stands disposed of accordingly.
3. In view of withdrawal of the appeal and in the light of a Division Bench decision of this Court in Gayathri.V.Indira Rajashekar [ILR 2000 KAR 3002], the appellants are entitle for refund of fifty percent of the court fee paid on the appeal memorandum. Accordingly, Registry shall refund to the appellants, fifty percent of the court fee paid on the appeal memorandum.
Appeal disposed of.”
14. Significantly, there has been no challenge to the judgment passed by this Court in RFA No.502/2013 and RFA No.1307/2013 granting liberty to the appellants to avail appropriate remedy.
15. This Court permitted the appellants herein to withdraw the appeals and in RFA No.1307/2013 and liberty was reserved to the appellants to avail appropriate remedy available under law as against the impugned order dated 01.02.2000 passed in O.S.No.6350/1999, which is a compromise decree. Since this Court permitted the appellants herein to withdraw RFA No.1307/2013 with liberty to avail any other remedy, RFA No.502/2013 which was filed against the rejection of the application filed under Order XXI Rules 97 and 101 read with Section 151 of CPC, was also permitted to be withdrawn. The said orders though passed separately by a Co-ordinate Bench of this Court, must be read in an analogous way, as they contested the proceedings between the same parties and in respect of the same properties. On the strength of the liberty reserved by this Court, the appellants preferred O.S.No.7337/2016. We wish to observe and reiterate that it is on the basis of the liberty reserved by this Court, the appellants preferred the suit - O.S.No.7335/2016 seeking the aforesaid prayers.
16. The question to be considered at this stage is not as to whether the appellants / plaintiffs would succeed in the suit or not, but the question is, whether, the suit was hit by Order VII Rule 11(d) of CPC. We think, it is not so, for the reason that despite the dismissal of the applications filed by the appellants herein in Execution Petition No.2525/2002 under Order XXI Rules 97 and 101 read with Section 151 of CPC, liberty was granted by this Court to avail an alternative remedy. Simultaneously, a challenge to the compromise decree passed by the trial Court in O.S.No.6350/1999 dated 01.02.2000 was not adjudicated by this Court and instead RFA No.1307/2013 was permitted to be withdrawn. The reason being that an appropriate remedy was available to the appellants.
17. The case of the appellants that they are the title holders, as Anusuya, being their vendor, had convened ‘B’ and ‘C’ schedule properties to them under a registered sale deed and therefore, a compromise decree dated 01.02.2000 was not binding on them. It is in respect of seeking the said relief and also the consequential relief of permanent injunction, O.S.No.7337/2016 was filed and liberty being granted by this Court in RFA No.1307/2013. Therefore, it cannot be held that there was an earlier finding which was given by the Executing Court and which had attained finality on account of the withdrawal of RFA No.502/2013 or on account of the withdrawal of RFA No.1307/2013, the matter had attained finality. The withdrawal of the appeals in our view was not withdrawal simplicitor but liberty was granted by this Court to avail the appropriate remedy. Whether the appellants would be successful in the suit or not is a matter to be adjudicated by the trial Court in accordance with law. But we find that the trial Court could not have rejected the plaint on the ground that the suit was not maintainable or that the appellants had no cause of action. In saying so, we rely upon the decision of the Hon’ble Supreme Court in the cases of CHHOTANBEN AND ANOTHER v. KIRITBHAI JALKRUSHNABHAI THAKKAR AND OTHERS reported in AIR 2018 SC 2447 and VAISH AGGARWAL PANCHAYAT v. INDER KUMAR reported in AIR 2015 SC 3357. In the latter case, the Hon’ble Supreme Court has held that the res judicata cannot be a ground to reject the plaint as res judicata involves mixed question of law and fact, which requires examination of the plaint, but also other evidence taken as such ground to reject the plaint. In the former case, Hon’ble Supreme Court has held that whether the suit is barred by limitation is a triable issue and the plaint cannot be rejected at the threshold.
18. That apart, it is necessary for us also to observe that the appellants herein not being parties to the compromise decree passed in O.S.No.6350/1999 dated 01.02.2000 could not have sought for recalling of the said compromise decree.
We do not think they could also file an appeal against the said compromise decree. That is why better sense prevailed on the appellants and they sought for withdrawal of the appeals and sought liberty to seek appropriate remedy. How O.S.No.7337/2016 would be adjudicated by the Competent Authority is not for us to foresee at this stage. We think that the trial Court was not right in rejecting the plaint at the threshold, as in paragraph No.20 of the plaint, the appellants have categorically stated that the suit was filed on the strength of the liberty reserved by this Court in RFA No.1307/2013. This significant aspect has been ignored by the trial Court.
19. The judgment of the learned Senior Judge of this Court in the case of SYED YUSUFF v. FATHIMABI reported in ILR 2009 KAR 510 is not applicable to the case on hand, as that was a case where a separate suit between the same parties was held to be not maintainable for setting aside a compromise decree in view of Order XXIII Rule 3A of the CPC. This Court held that there was bar to such an independent suit and the right approach is to seek recall of the compromise decree by filing an application in the suit which was disposed of by the way of compromise.
20. The proper forum to challenge the compromise is similarly discussed in the case of Y.SLEEBACHEN AND OTHERS v. STATE OF TAMIL NADU reported in (2015) 5 SCC 747. The Hon’ble Supreme Court has held that a party has to approach the Court which has recorded the compromise in the first instance rather than straightaway filing an appeal, as it is the Judge before whom the compromise was recorded who is privy to the events that led to the compromise order and is thus in a better position to consider an application for recall of the compromise decree.
21. But in the instant case, the appellants herein are not parties to the said compromise and they have the appropriate remedy of filing a separate suit so as to contend that the compromise arrived at in O.S.No.6350/1999 dated 01.02.2000 is not binding on them. Hence, the judgments relied upon by the learned counsel for respondent Nos.7 to 10 are of no assistance to them.
22. In the result impugned order and decree dated 30.08.2017 passed in O.S.No.7337/2016 is set aside. The suit is restored on the file of the XI Additional City Civil Judge, Bangalore City.
23. Since the appellants and respondent Nos.7 to 10 are represented by their respective counsel, they are directed to appear before the trial Court on 27.01.2020 without expecting any separate notice from the trial Court.
24. The trial Court to ensure that the other parties to the suit are served and thereafter, to dispose of the suit in accordance with law.
25. At this stage, learned counsel for the appellants submits that by a detailed order dated 29.05.2019, this Court stayed dispossession of the appellants vis-à-vis the suit schedule properties pending disposal of this appeal. He submits that Execution No.2525/2002 is at the stage of issuance of delivery warrant. Therefore, an application would be filed seeking appropriate interim relief. He submits that pending consideration of the interim application to be filed by the appellants herein in O.S.No.7337/2016, the interim order granted on 29.05.2019 may be continued.
26. Learned counsel for respondent Nos.7 to 10 raised objections to continue the interim order. But having regard to the judgment passed by us above restoring the suit on the file of the trial Court, we think it is just and proper to extend the said interim order till the application filed by the appellants herein in O.S.No.7337/2016 is considered and orders are passed thereon.
27. Learned counsel for respondent Nos.7 to 10 submits that the suit is of the year 2016. Hence, a direction may be issued for expeditious disposal of the suit. In view of the said submission made, both parties are directed to co-operate with the trial Court for expeditious disposal of the suit.
28. It is needless to observe that if there is proper and timely assistance rendered to the trial Court, then the suit shall be disposed of as expeditiously as permissible.
Sd/- JUDGE Sd/- JUDGE VMB