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2001 DIGILAW 860 (KAR)

Hanumantharayappa v. A. Krishnappa

2001-11-29

D.V.SHYLENDRA KUMAR

body2001
JUDGMENT D.V. Shylendra Kumar, J.—These Civil Revision Petitions are directed against the common order dated 12.2.2001 passed in Miscellaneous Petition Nos. 362 of 2000 and 363 of 2000 on the file of the XXIX Additional City Civil Judge, Bangalore, wherein the learned Trial Judge has allowed the said Miscellaneous Petitions and had set aside the compromise decree dated 17.7.1999 passed in O.S. No. 4354 of 1999 on the file of the same Court. 2. The impugned order came to be passed on two applications filed by the Respondents herein. One under the provisions of Order 47, Rule 1 which came to be numbered as Miscellaneous No. 363 of 2000 and another under the provisions of Order 23, Rule 3(B) came to be numbered as Miscellaneous No. 362/2000 and both praying for setting aside the order. 3. In the earlier compromise decree referred to above, the said applications came to be allowed. The Plaintiffs in the said suit have preferred Civil Revision Petitions Nos. 1670 of 2001 and 1672 of 2001 as against that order, the Defendants in the suit have preferred Civil Revision Petition Nos. 1758 of 2001 and 1759 of 2001. Under the circumstances, all the four revision petitions have been clubbed together and have been heard together. The first Respondent is common in all the four petitions who is the applicant in the Miscellaneous case. 4. Heard the learned Counsel Sri S.A. Kalagi appearing for the Petitioners in CRP Nos. 1758 and 1759 of 2001, Sri H.M. Mariyappa, learned Counsel for the Petitioner in Civil Revision Petition Nos. 1672 and 1670 of 2001 and Sri V.B. Shivakumar, learned Counsel appearing for the Respondent No. 1 in all these revision petitions. 5. Elaborate Submissions have been made. The matter was heard at some length and is being disposed of by this common order. 6. The brief facts that led to file all the above civil revision petitions are that the Petitioners in Civil Revision Petition Nos. 1670 and 1672 of 2001, which is a housing society had filed O.S. No. 4354 of 1999 praying for the relief of specific performance of contract as per agreement dated 10.3.1999. It is alleged that it is an agreement between the Plaintiff and the Defendants for conveying an extent of 2 acres 22 guntas of land in Sy. No. 69/2 of Agrahara Dasarahalli, Bangalore North Taluk, presently known as Basaveshwara Nagar. It is alleged that it is an agreement between the Plaintiff and the Defendants for conveying an extent of 2 acres 22 guntas of land in Sy. No. 69/2 of Agrahara Dasarahalli, Bangalore North Taluk, presently known as Basaveshwara Nagar. The Plaintiff also averred that this contract came to be entered into pursuant to earlier agreement dated 28.1.1976 and there were certain intervening circumstances when the land has been acquired by BDA in the year 1977 and later it has been denotified in the year 1998 and subsequent to which the suit had been filed for specific performance. 7. The Defendants entered appearance on service of notice. The suit came to be compromised and a compromise decree dated 17.7.1999 came to be passed by the Court. An application was filed by the parties under the provisions of Order 23, Rule 3(B) and it is this compromise decree which was sought to be set aside by the two miscellaneous applications filed by the Respondent. 8. The case of the Respondent was that he also had interest in the property by an agreement dated (sic) executed by the very Defendants who are the predecessors and in so far as an agreement in their favour is concerned, the Respondent had called upon the owners to perform their part of the contract under the agreement for which they have issued a legal notice and in view of the dispute as the contract was not performed, an arbitrator came to be appointed and the arbitrator had passed an award compelling the specific performance of the agreement and that the award was sought to be executed by filing an Execution Case No. 568/1999 and as per the directions of the Court in the said execution proceedings a registered sale deed in favour of the Respondent had been executed as per order dated 25.8.1999. In view of such developments, the Respondents were the persons very much interested in the matter which was the subject matter of O.S. No. 4354/1999 and the compromise decree that had been entered into between the Plaintiff and the Defendants in the said suit. The compromise decree having been brought about without impleading the Respondent as a party, it was required to be set aside for which purpose the Respondent had filed two applications as on 15.4.2000. The compromise decree having been brought about without impleading the Respondent as a party, it was required to be set aside for which purpose the Respondent had filed two applications as on 15.4.2000. The Trial Court on considering the applications of the parties and on detailed scrutiny of the developments leading to the applications, found that all was not well in the matter of obtaining the compromise decree and also found that in the matter of payment of Court fee, there was considerable irregularity. On the face of record, it appears that the parties had not paid the correct Court fee and had indulged in fraudulent practice. The Trial Court observed that in a situation of this nature, the compromise decree cannot be sustained and as such recalled the compromise decree dated 17.7.1999 and restored the suit to its original file and directed proceedings in the suit to be continued. Aggrieved by this order, the Plaintiff and the Defendants in the suit have come up before this Court in the two sets of revision petitions. 9. Several contentions have been urged on behalf of the Petitioners with considerable force. The submission of the learned Counsel Sri S.A. Kalagi appearing for the Petitioners, is that the applications filed both under Order 23, Rule 3(B) and under Order 47, Rule 1 were not at all tenable or maintainable at the instance of a person like the Respondent who was a stranger or a third party to the proceedings. As such, the said person could not have filed any application either seeking for setting aside of the compromise decree or any modification of the said decree. It is the submission of the learned Counsel that in so far as the provision of Order 23, Rule 3, it arises only in respect of proceedings involving suits in representative capacity, whereas, in the instant case, the suit was between the private parties. The learned Counsel has placed reliance on the decision of the Allahabad High Court reported in Sunder Theatres (Nandani Talkies) , Civil Lines, Jhansi Vs. Allahabad Bank, Branch Civil Lines, Jhansi, AIR 1999 All 14 . The learned Counsel has placed reliance on the decision of the Allahabad High Court reported in Sunder Theatres (Nandani Talkies) , Civil Lines, Jhansi Vs. Allahabad Bank, Branch Civil Lines, Jhansi, AIR 1999 All 14 . In so far as the application under Order 47, Rule 1 is concerned, the learned Counsel has submitted that the Respondent-applicant was not a party to the original proceedings and could not have maintained an application for review of the judgment and decree passed by the Court and in support of the said submission, has placed reliance on the decision of the Punjab and Haryana High Court reported in AIR 1992 P&H 248 . 10. Sri Mariyappa, learned Counsel appearing for the Petitioners in Civil Revision Petition Nos. 1672/01 and 1670/01 submits that the Respondent being a person who is not a party to the suit and who did not have any interest in the property, the 1st Respondent was neither a necessary party nor was a person who was required to be impleaded and as such, such a person cannot maintain an application either under Order 23, Rule 3(B) or Order 47, Rule 1. Learned Counsel further submits that the land in question was the subject matter of agreement between the parties even during the year 1976 and as per the notification issued under the provisions of the Land Acquisition Act in the year 1977, it was sought to be acquired in favour of B.D.A. and the same came to be released from acquisition only during the year 1998. As such, any transaction assuming that they had taken place between the Defendants and the applicant-Respondent were of no consequence in law and accordingly at the instance of such a person, the Court could not have acted to vary or modify or set aside the compromise decree that had been entered into between the parties. The learned Counsel also submits that it is not as though all the Defendants were not before the Court and in as much as the power of attorney holder of all the Defendants who was one amongst the Defendants had acted on behalf of all the Defendants and as such compromise was total between the parties and this could not have been set aside at the instance of persons like Respondent. 11. 11. Sri Shivakumar, learned Counsel appearing for the Respondent submitted that the Respondent is a person who had acquired interest over the lands in question under an agreement executed by the very persons who had entered into an agreement against whom the Petitioners in Civil Revision Petition Nos. 1670/2001 and 1672/2001 instituted suit. In fact in so far as the Respondent is concerned, the proceedings have developed further particularly, by appointing an arbitrator to resolve the dispute between the owner of the land and having been leading to the passing of an award and ultimately the same having culminated in execution of the sale deed by the Court in execution proceedings taken out for the implementation of the award thereof. The Respondent in the execution case is Respondent in the original case and as such, when a compromise nature or even the relief sought for in the suit is one which affects the interest of the Respondent, the Respondent was a party with locus standi to come on record. In fact, he should have been impleaded in the suit itself, in the argument. 12. Secondly, he submitted that the Court itself having executed the sale deed pursuant to the award in favour of the Respondent, the question of issuing notice to the other land owner does not arise. The parties have entered into a compromise decree with the Plaintiff in the suit to defeat the Respondent's rights and such conduct on the part of the Defendant by suppressing the earlier developments to play fraud to the detriment of the Respondent is clearly reprehensible and the compromise decree cannot be sustained in law. 13. The question that arises for consideration is, Whether the Trial Court could have acted at the instance of persons like Respondent for the purpose of setting aside the earlier compromise decree? In this regard, the vehement submission on the part of the Petitioners is that, the Respondent is a stranger or third party and is not entitled to move applications of the nature filed before the Court below. If the Respondent is really a stranger or third party, perhaps the Court should not have acted at his instance. But on a perusal of the developments in the case, it is obvious that the Respondent is a person who has some interest in the subject matter of the suit. If the Respondent is really a stranger or third party, perhaps the Court should not have acted at his instance. But on a perusal of the developments in the case, it is obvious that the Respondent is a person who has some interest in the subject matter of the suit. The question before the Court is, "as to in what manner, the parties have acquired the interest?" If at all these questions have to be gone into in the suit when disputed between the parties by leading evidence. But prior to those questions, it has to be considered as to whether the Petitioners were required to bring to the notice of the Court certain things which has not been done by the parties praying for the compromise decree dated 17.7.1999. In view of such decree, the matter requires to be examined in context of the conduct of the parties also. 14. In view of the above, the strong circumstance that goes to the Petitioners is that the owners of the property in question were very much necessary parties in the execution case seeking for the execution of the award of the arbitrator. It appears that the Respondents in the said execution case had also further appealed against the order of the Court dated 25.8.1999 directing execution of the registered sale deed by filing Miscellaneous First Appeal No. 5475/99 and the said Miscellaneous First Appeal came to be dismissed by this Court with the observation that it is open to the appellant therein to pursue the remedy by agitating his rights and grievance in Arbitration Case No. 76/99 pending before the Civil Court. 15. Sri Kalagi, learned Counsel for the Petitioners in Civil Revision Petition No. 1756/2001 however submits that the arbitration proceedings themselves were a fraud played on the owners of the land. The contention of the learned Counsel is that they were not heard in the said proceedings as the Respondent who had been entrusted with certain work in respect of the property in question and for which purpose they had executed certain documents had misused them. Therefore, they had sought for setting aside the award in the Arbitration Case No. 76/99. As the Petitioners in Civil Revision Petition Nos. Therefore, they had sought for setting aside the award in the Arbitration Case No. 76/99. As the Petitioners in Civil Revision Petition Nos. 1758 and 1759 of 2001 were not aware of this development at the earlier stage and as and when they came to know about the same they started taking steps in the arbitration case and the same cannot be held against them. 16. The parties to these revision petitions have been levelling charges against one another in bringing about the Arbitrators award and in particular, the fraudulent acts on the part of the other side. In respect of these allegations, the Courts as still to examine the veracity or the genuineness of the same and as how such allegations or acts of fraud can affect one another. But the fact remains that all these proceedings have taken place between the parties and while entering into the compromise decree dated 17.7.1999, the Defendants can hardly plead ignorance with the developments involving the Respondent in these revision petitions. As such, what the Defendants could have done is, that they should have brought all these aspects to the notice of the Court the subject matter being the same. If on the other hand the Defendants are in a hurry to enter into a decree with the Plaintiff in the suit, it would be difficult to sustain such a decree. If the Respondent before this Court had complained in the Trial Court that it was detriment to this interest, the matter requires reconsideration. 17. By the impugned order, the Trial Court has merely set aside the compromise decree and restored the suit to original file. I am aware that the provisions of Order 23, Rule 3(B) are directly not applicable in a situation like this. The Trial Court if at all could have proceeded under the provisions of Order 23, Rule 3 which was the very provision under which the compromise decree came to be passed. In so far as the provisions of the Order 47, Rule 1 is concerned, it is dependent on the expression "person aggrieved." 18. Sri Shivakumar, learned Counsel for the Respondent has placed reliance upon the three decisions viz. Khitish Chandra Chatterjee and Anr. Vs. Nagendra Nath Mandal and Others, AIR 1929 Cal 513 and S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. Sri Shivakumar, learned Counsel for the Respondent has placed reliance upon the three decisions viz. Khitish Chandra Chatterjee and Anr. Vs. Nagendra Nath Mandal and Others, AIR 1929 Cal 513 and S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, AIR 1994 SC 853 Normally, the meaning to be attributed to the person aggrieved is to be a person who is a party to the proceedings and not strangers or the outsiders. The discussion above indicates that the Respondent cannot be construed as a total stranger or outsider to the proceedings. The Respondent is a person who has some interest in the subject matter of the suit. The real question will be that the decree which is sought to be varied or reviewed is a decree, which affects the person who is seeking for setting aside of the same. In this context, the meaning of the expression person aggrieved cannot be restricted to mean as only person who were parties to the proceedings as this can lead to disastrous consequences. For example, if persons were aggrieved by the decree and really interested in the subject matter, if had not been impleaded even by a design in the suit resulting in a compromise decree, they cannot maintain an application under Order 47, Rule 1. If this test is applied, the Respondent cannot be characterised as a person who is totally stranger or third party to the proceedings. If it is so, it can be safely held that the Respondent can come within the meaning of the person aggrieved as indicated under the provisions of Order 47, Rule 1. 19. The Trial Court which had passed the compromise decree in the suit and in the context of the applications and in view of the rival submissions made before the Trial Court, has made observations of far reaching consequences and in fact, the Trial Court was of a view that allowing the compromise decree which has been obtained by resorting to all sorts of undesirable practices, would result to miscarriage of justice and as such, the compromise decree requires to be setaside. The Trial Court was also of the view that if the compromise decree is setaside, no prejudice would be caused to the Respondents in the miscellaneous applications as it only enabled the Court to consider the matter in accordance with law. 20. The Trial Court was also of the view that if the compromise decree is setaside, no prejudice would be caused to the Respondents in the miscellaneous applications as it only enabled the Court to consider the matter in accordance with law. 20. In the exercise of the revisional jurisdiction of Section 115 of the Code of Civil procedure, what this Court is required to look into is, whether the order impugned has resulted in miscarriage of justice or whether the Trial Court has acted with any material irregularity or without jurisdiction or failed to exercise the jurisdiction. The question of jurisdiction does not arise in the instant case in as much as the Trial Court is competent to look into the applications of the nature filed before it. The provision quoted may not always help the Court to decide on jurisdiction. In an application for setting aside the compromise decree, the Court finds that the compromise decree was entered into by the parties in the suit for their convenience and to the detriment of other persons interested in the subject matter the Court is bound to exercise its jurisdiction to set right things. The Trial Court has also observed that the parties to the suit have not approached the Court with clean hands and suppressed material facts relating to the earlier Court proceedings which resulted in compromise decree and which is as a result of abuse of the process of the Court. In a situation of this nature, interference with the order passed by the Trial Court is not called for. 21. I do not find any justification for interfering with an order of this nature which if at all has enabled all the parties to place their respective case before the Court. No doubt, it is true that the Petitioners may feel aggrieved as a decree which had been obtained has been setaside and then may be exposed to the prolonged uncertainties of litigation, but it is to be held in a situation of this nature, the parties have to blame themselves. The Petitioners obviously tried to speed up the Court proceedings without due care for procedural requirements and by suppressing facts and misleading the Court of the factual aspects. 22. I find no scope for interference in these Civil Revision Petitions. No merit. Accordingly, they are dismissed. 23. The Petitioners obviously tried to speed up the Court proceedings without due care for procedural requirements and by suppressing facts and misleading the Court of the factual aspects. 22. I find no scope for interference in these Civil Revision Petitions. No merit. Accordingly, they are dismissed. 23. Parties are left to make appropriate applications before the Trial Court for any further relief which they seek for, during the pendency of the suit. It is also observed that the findings given in the course of this order shall not come in the way of any determination on the merits of the respective claims in the suit before the Trial Court and parties are at liberty to urge all contentions.