Smt. R. Puttnanjamma vs Shri R. Madaiah and Others

A.N. Venugopala Gowda, J.—This first appeal by the plaintiff is directed against an order allowing an I.A. filed by defendant No. 12 under Order 7 Rule 11 CPC and thereby holding that the suit is not maintainable under Order 23 Rule 3A read with Order 7 Rule 11(d) of CPC. The respondents were the defendants in the suit. For convenience, parties will be referred by their rank in the Trial Court. Appellant-plaintiff filed the suit to pass a decree of partition and separate possession by declaring that she is entitled to 1/4th share in the 1/2 share of the branch of Revanna''s family and to declare that the sale deeds dated 27.09.1982 and 18.12.2000 registered as document Nos. 3832, 9170 and 9171 in favour of defendant Nos. 10 & 12 as not binding on the share of the plaintiff and for grant of consequential reliefs.

In the plaint, there is clear admission with regard to the plaintiff and her mother Nanjamma and defendants 1 to 3 having filed O.S. No. 2107/1988 for partition and separate possession against the branch of Puttamadaiah and the said suit having ended with a compromise on 23.07.1988. 12th defendant filed application under Order 7 Rule 11(d) for rejection of the plaint on the ground that the suit is barred under Rule 3A of Order 23 CPC. Learned Trial Judge having noticed the material averments in the plaint with regard to the alleged fraud, misrepresentation and undue influence etc. in the matter of entering into of the compromise in O.S. 2107/1988, the suit having instituted for passing of decree of partition of family properties, the same having been already decided in the compromise decree dated 23.07.1988, by taking note of the decisions in the cases reported in AIR 2006 SCW 3549 and ILR 2009 KAR 510, has held that the suit is not maintainable and as a consequence, has rejected the plaint.

Sri Prakash T. Hebbar, learned advocate appearing for the appellant contended that the learned Trial Judge has failed to appreciate the legal position that a separate suit to set aside the compromise decree which has been arrived at by practising fraud is maintainable and that the impugned order being erroneous warrants interference. Alternatively, learned counsel submitted that, if the impugned order/decree were to be upheld, liberty may be reserved to the appellant to take steps in O.S. No. 2107/1988, for setting aside of the decree passed therein on the basis of the compromise petition.

Sri. V. Ramesha Babu, learned advocate appearing for the respondents on the other hand made submissions in support of the view taken by the learned Trial Judge to reject the plaint and sought rejection of the appeal.

In view of the rival contentions and the record of the case, the point for consideration is, whether the learned Trial Judge is justified in holding that the suit is not maintainable and in rejecting the plaint?

A plaint shall be liable for rejection in exercise of the jurisdiction under Order 7 Rule 11(d) CPC, if it appears from the averments made therein, that the suit is barred by any law in force. The plaint has to be read as a whole to find out whether clause (d) of Rule 11 of Order 7 is applicable. The Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit i.e., while registering the plaint or after issuing of summons to the defendant or at any time before conclusion of the trial.

In the plaint, it has been stated that the plaintiff and her mother Nanjamma along with defendants 1 to 3 filed O.S. No. 2107/1988 against Siddalingaiah and Nanjundaiah''s family members. In the said suit, the appellant was plaintiff No. 5. The said suit was decreed in terms of a compromise petition filed by the parties. According to the appellant, the share which was allotted to her had been sold by her brothers i.e., defendants 1 to 3 under various sale deeds and that there was fraudulent act in defeating her right. There is fraud on account of the said fact situation.

Perusal of the plaint averments in the case on hand would clearly indicate that the plaintiff has admitted the filing of O.S. No. 2107/1988 for passing decree of partition and separate possession. The suit having been compromised on 23.07.1988 and she having been allotted a share, whether there was any fraud played on her in the matter of compromise entered into on 23.07.1988 cannot be the subject matter of consideration in the present suit, in as much as in the decision of the Apex Court reported in AIR 2006 SCW 3549, it has been held that, no independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful, in view of the bar contained under Rule 3A of Order 23 CPC.

In the case of Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another, Apex Court has held that, if the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to R.3 and as such not lawful. In that case, the plaintiff challenged an order recording compromise on the ground his counsel in collusion with defendant of the suit had played a fraud on him by filing a fabricated petition of compromise although no compromise had been effected between him and the defendant. Details of fraud were also mentioned in the petition and it was stated that the alleged compromise itself was void, illegal and against the requirement of O. 23 Rule 3 CPC. Apex Court considering the provisions under O. 23 Rules 1, 3 and O. 43 Rule 1A and S. 96(1) of CPC has held as follows:

When the amending Act introduced a proviso along with an explanation to Rule 3 of O. 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act....." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of compromise has to examine whether the compromise was void or voidable under the Indian Contract Act.

In view of the well settled position of law and the averments made in the plaint, with regard to the filing of O.S. No. 2107/1988, to pass a decree of partition and separate possession and the compromise decree passed therein on 23.07.1988, the Trial Court is justified in rejecting the plaint. In the circumstances, the impugned order is neither perverse nor illegal, warranting any interference.

In the result, appeal being devoid of merit is rejected. However, it is made clear that the rejection of the plaint in O.S. No. 7732/2001 will not come in the way of the " appellant/plaintiff from taking steps in O.S. No. 2107/1988 to set aside the decree passed therein on 23.07.1988 i.e., on the basis of the compromise petition. If any application/petition is filed by the appellant/plaintiff in O.S. No. 2107/1988, in the Court which disposed of the said suit, such petition/application be considered and decided in accordance with law.

In the circumstances of the case, parties are directed to bear their respective costs.