IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.50638 OF 2019 (GM-CPC) BETWEEN:
1 . SRI. UMESH C., AGED ABOUT 52 YEARS, S/O LATE M.CHIKKAMADA, R/AT NO.48, 1ST MAIN, 2ND CROSS, BHUVANESHWARANAGAR, BEHIND KEDAPASWAMY MUTT, BENGALURU-560 026.
2 . SRI. DEVARAJ C., AGED ABOUT 64 YEARS, S/O CHIKKARANGAPPA R/AT NO.975, 2ND CROSS, 4TH BLOCK, H.M.T. LAYOUT, NELAGADARANAHALLI, NAGASANDRA, BENGALURU-560 073.
3 . SRI. K.N. OMPRAKASH, AGED ABOUT 63 YEARS, R/AT OLD NO.44, NEW NO.33, 4TH CROSS, S P EXTENSION MALLESHWARAM, BENGALURU-560 003. ..PETITIONERS (BY SRI. K.SUMAN, ADVOCATE) AND:
1 . KEB EMPLOYEES CO OPERATIVE SOCIETY LTD A SOCIETY REGISTERED UNDER THE PROVISIONS OF THE CO-OPERATIVE SOCIETIES ACT, HAVING ITS REGISTERED OFFICE AT RACE COURSE ROAD, ANAND RAO CIRCLE, BENGALURU, PRESENTLY KNOWN AS KPTCL EMPLOYEES CO-OPERATIVE SOCIETY LTD. REPRESENTED BY ITS SECRETARY SRI. K.SHIVAKUMAR.
2 . SRI. K.T.RAMESH, AGED ABOUT 72 YEARS, S/O LATE K.G.TULASIRAM, 3 . SRI. K.T.GOPALAKRISHNA, AGED ABOUT 70 YEARS, S/O LATE K G TULASIRAM, 4 . SRI. K.T.GOVERDHAN, AGED ABOUT 68 YEARS, S/O LATE K.G.TULASIRAM, 5 . SRI. K.T.SUDARSHAN, AGED ABOUT 64 YEARS, S/O LATE K.G.TULASIRAM, 6 . SRI. K.T. NAGESH AGED ABOUT 45 YEARS, S/O LATE K.G.TULASIRAM, 7 . SMT. K.V.NAGARATHNA, AGED ABOUT 76 YEARS, W/O LATE K.T.VENKATAGIRI, 8 . SMT. K.V.SUNITHA. AGED ABOUT 57 YEARS, D/O LATE K.T.VENKATAGIRI, 9 . SMT. K.V.REKHA, AGED ABOUT 52 YEARS, D/O LATE K.T.VENKATAGIRI, W/O B.R.SANJAY, SL. NOS.2 TO 9 ARE RESIDING AT NO.10, NEW HIGH SCHOOL ROAD V.V.PURAM, BENGALURU-560004 (BY SRI. S.SREEVATSA, SR.COUNSEL, ... RESPONDENTS FOR SRI. H.S.SOMNATH , ADVOCATE FOR C/R-3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH/SET ASIDE THE ORDER DATED 17.09.2019 PASSED BY THE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE AT NELAMANGALA ON I.A.NO.10 IN O.S.NO.360/2012 (I.E., ANNEXURE-A) AND CONSEQUENTLY ALLOW I.A.NO.10 FILED BY THE PEITTIONERS IN O.S.NO.360/2012 UNDER ORDER 23 RULE 3A R/W SECTION 151 OF THE CODE OF CIVIL PROCEEDURE (I.E., ANNEXURE-K) AS PRAYED FOR AND THEREBY SET-ASIDE THE COMPROMISE ENTERED INTO BY THE R-1 WITH THE R-2 TO 9 ON 22.06.2017 (I.E.,ANNEXURE-G) THE ORDER DATED 26.06.2017 PASSED BY THE COURT BEOW DECREEING THE SUIT IN O.S.NO.360/2012 AS PER THE COMPROMISE PETITION I.E., ANNEXURE-H AND THE COMPROMISE DECREE PASSED BY THE COURT BELOW IN O.S.NO.360/2012 ON 23.06.2017/30.06.2017 (I.E., ANNEXUR-J) AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners whose application filed under Order XXIII Rule 3A of the amended Code r/w Section 151 of CPC, 1908, for setting aside the subject compromise decree has been rejected, are aggrieved by the order dated 17.09.2019, a copy whereof is at Annexure-A, made by the learned Additional Senior Civil Judge, Nelamangala. The third respondent i.e., second plaintiff in the suit in O.S.No.143/2006 later numbered as O.S.No.360/2012 having entered Caveat through his counsel, resists the Writ Petition.
2. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter inasmuchas, the petitioners were not parties eo-nomine to the suit/compromise decree and therefore, they could not have invoked order XXIII Rule 3A r/w Section 151 of CPC, 1908, seeking vacating of the subject compromise decree on the grounds that would vitiate a contract on which it is founded.
3. The contention of the contesting respondent- plaintiff that the first respondent-Co-Operative Society is a corporate aggregate in which a personality of its members merge and therefore, petitioner cannot lay a challenge to the compromise decree appears to be too broad a view which is not much supported by the decision of the Apex Court in the case of STATE OF UP V/S. COD 1997 3 SCC 681, when fraud or the like is alleged inasmuch as, the Apex Court in the case of S.P.CHENGALVARAYA NAIDU (DEAD) BY LRS. V.S. JAGANNATH (DEAD) BY LRS. AND OTHERS, (1994) 1 SCC 1, has observed as under:
“6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chnilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Ex. B-15 and non- suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.”
4. The last contention of the respondent that petitioners have to work out their remedy elsewhere is true; it is open to the petitioners to work out their remedy by filing an appropriate suit for challenging the subject compromise decree on the grounds that would void a contract, on which such a decree is founded, or on any other ground.
In the above circumstances, this Writ Petition is disposed off with the observations made hereinabove, keeping open all contentions of the parties.
Sd/- JUDGE DS