Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 1070 (KAR)

Leelamma v. P. Anitha

2010-10-06

ANAND BYRAREDDY

body2010
Judgment :- These are heard together as they arise out of a common order of the court below. 2. The brief facts are as follows: The petitioners in these two respective petitions, were defendants no. 5 and no.6 in a suit for partition filed by respondent no.1. The petitioners and respondent no.5 herein, and one Prakash Reddy were the children of Chikkarama Reddy. Chikkarama Reddy has inherited ancestral properties, and on his death his children had succeeded to the properties. Prakash Reddy also having died, Respondents no.1 to 4 are his heirs. The parties are Hindus. Radhamma, respondent no.5 herein, who is the sister of these petitioners had filed a suit for partition in a suit bearing no. O.S.806/2000, before the Court of the City Civil Judge, Bangalore. On an interlocutory application for temporary injunction, restraining the defendants from cutting and removing standing timber on the suit properties, the order was granted. Anitha, one of the daughters of late Prakash Reddy had also filed a suit for partition against the same parties in respect of the same properties in a parallel suit in O.S.4287/2000, before the Court of the City Civil Judge, Bangalore. Ramprasad, the son of Prakash Reddy, being aggrieved by the order of injunction has preferred an appeal before this Court, on its appellate side, in MFA 4940/2003. On 24.9.2003, the appeal was dismissed as withdrawn. Incidentally, it was stated by the counsel for the appellant and the counsel for Radhamma and Anita (The petitioners though served with notice of the appeal had remained absent and were not represented in the appeal), that the main matter in the respective suits had been amicably settled-and each of them sought to file a memo to state that the above referred suits had been settled out of court. This court dismissed the appeal as withdrawn and directed the registry to transmit the record along with the memoranda to the trail court to enable it to pass appropriate orders on the memoranda. Thereafter the trail court, as on 5.11.2003, took note of the Memorandum of the plaintiff and dismissed the suit in O.S.806/2000, as withdrawn. The plaintiff in O.S.4287/2000, moved the trail court seeking dismissal of her suit as having been settled out of court, as on 27.9.2003. Thereafter the trail court, as on 5.11.2003, took note of the Memorandum of the plaintiff and dismissed the suit in O.S.806/2000, as withdrawn. The plaintiff in O.S.4287/2000, moved the trail court seeking dismissal of her suit as having been settled out of court, as on 27.9.2003. On the same day, the petitioners filed interlocutory applications, one under Order 1 Rule 10(6) of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’ for brevity) and the other under Order 1 Rule 10(2) CPC, by each of the petitioners, respectively. Those applications having been rejected and the memorandum of the plaintiff having been accepted, the suit was dismissed as withdrawn, by a common order, the same is under challenge in these petitions. The trail court, in the impugned order has taken note of the observations and directions of this court in the above referred appeal and before the memo of the plaintiff, that was sought to be filed by the plaintiff in O.S.4287/2000 in the appeal against an interim order passed in O.S.806/2000, could be received by the trail court, the defendants had filed written statements and counter-claim much before filing the above applications on which the impugned order was passed. The trail court has opined that this court had already recorded the intention of the plaintiffs in the respective suits to withdraw the same as settled out of court and therefore, recording such withdrawal was only a formality. The trail court has further observed that the defendants who were also parties to the parallel suit not having raised any objection for the withdrawal of the same were estopped from doing so in the latter suit. 3. The learned counsel for the respective petitioners would contend that the reasoning of the trail court that this court had already recorded the intention of the parties to withdraw the two suits and therefore, it was bound to permit such withdrawal was an incorrect interpretation. The appeal was against an interlocutory order and there was no scope for addressing the claims of the parties. The petitioners were not represented in the appeal and they had remained absent. Their consent to any alleged settlement could not therefore be presumed. This court, in the above said appeal, did not record any settlement. The appeal was against an interlocutory order and there was no scope for addressing the claims of the parties. The petitioners were not represented in the appeal and they had remained absent. Their consent to any alleged settlement could not therefore be presumed. This court, in the above said appeal, did not record any settlement. It did however, remit the memoranda filed by the counsel for the appellant and the plaintiffs in the two suits, who were respondents therein, to the trail court for appropriate orders. It is further contended that the suit in O.S.No.806/2000 had been dismissed as withdrawn and not as having been settled out of court. The petitioners could not be held bound by any such withdrawal to continue with the latter suit, which was for partition, as plaintiffs. In this regard, reliance is placed on a division bench in the case of Gowramma vs. Nanjappa ILR 2001 Kar.4853. In so far as the maintainability of the present writ petition, in the circumstance that the remedy of an appeal may be available to the petitioners, is concerned, the following authorities are cited to support the contention that the present petition may be the only remedy available. 1. Jai Indra Bahadur Singh and another vs. Deputy Commissioner, Kheri and others, AIR 1935 Oudh. 486. 2. Bangaru Pattabhiramayya and others, vs. Bangaru Gopalakrishnayya, AIR 1986 AP 270 . 3. Rajeet Ram Singh and another vs. Vth A.D.J. Kanpur Dehat and others, AIR 1999 ALL.189. 4. The respondent no.1 has filed objections to contend that the petitioners not having objected to the withdrawal of the earlier suit are precluded from resisting the withdrawal of the latter suit. The petitioners have a right of appeal against the impugned order and therefore cannot invoke the writ jurisdiction of this court. Further, that on merits, the petitioners are guilty of suppression of facts as is evident from several documents on record to establish that the petitioners after having alienated vast properties belonging to the family, as their absolute property, are seeking to lay claim to the suit properties, fraudulently. 5. The learned counsel for respondent no.3 places reliance on the following authorities, to contend that the writ petitions are not maintainable as the petitioners are provided with an alternative remedy of appeal:- 1. Bharathi Warehousing Corporation and another vs. M/s. Shreeshyla Co-operative Industrial Estate Limited and others, 2009 (1) AIR KAR.R.398. 2. 5. The learned counsel for respondent no.3 places reliance on the following authorities, to contend that the writ petitions are not maintainable as the petitioners are provided with an alternative remedy of appeal:- 1. Bharathi Warehousing Corporation and another vs. M/s. Shreeshyla Co-operative Industrial Estate Limited and others, 2009 (1) AIR KAR.R.398. 2. Sadhana Lodh vs. National Insurance Co .Limited and another, AIR 2003 SC 1561. 3. Vishnumoorthi Bhagwatha and another, vs. Rudra Shedthi and another, 1973 (2) MLJ 395. 4. Revamma vs. Sharanamma, 1974 (2) KLJ SN 77 5. S. Krishnama Naidu vs. Managing Director of the National Co-operative Bank Limited, Bangalore. 1999-ALT-1-1, 1999 (TLS) 0 416073. 6. In the above background, this court is required to consider whether the writ petition is maintainable in view of any alternative remedy available to the petitioners. And secondly, if the petitions are to held as being maintainable, whether the court below has proceeded in accordance with law in having rejected the applications of the petitioners and having dismissed the suit. On the question of maintainability of the petitions, it need not detain this court for long. There is ample authority on the scope of Article 227 of the Constitution of India conferring power of revision and superintendence on the High Courts. Ordinarily it is open to the High Court, in exercise of its power of superintendence to consider whether there is an error of jurisdiction in the decision of a court or tribunal, subject to its jurisdiction. (See: State of West Bengal v. Samar Kumar Sarkar, (2009) 15 SCC 444 .) If issues of law are wrongly determined by the courts below and if the same are questioned in a writ petition under Article 227, such petitions undoubtedly fall within the supervisory jurisdiction under Article 227. (See: Ramesh Chandra Sankla v. Vikram Cement (2008) 14 SCC 58 .) In the instant case, there is no dispute on the sequence of events leading up to the impugned order. There is no determination of the rights of the parties nor any finding on any question of fact that is in dispute. It is the short question, whether the plaintiff in a suit as dismissed when two of the defendants- whose relationship with the family was not in dispute, had filed their written statements and counter-claim had also filed applications seeking to transpose themselves as plaintiffs and had opposed the withdrawal of the suit. It is the short question, whether the plaintiff in a suit as dismissed when two of the defendants- whose relationship with the family was not in dispute, had filed their written statements and counter-claim had also filed applications seeking to transpose themselves as plaintiffs and had opposed the withdrawal of the suit. As is evident from the record, though the appeal was against an interlocutory order of temporary injunction granted in one suit - the plaintiff in that suit along with the plaintiff in the parallel suit and the appellant, had moved the Court seeking dismissal of both the suits as settled out of court. This court placed the statements made on record-dismissed the appeal as not pressed and directed the registry to remit the respective memoranda filed to the trail court for appropriate orders. This did not amount to this court recording the alleged settlement out of court and the consequent withdrawal of the suits. Especially, as the petitioners herein, though served with notice of the appeal had not entered appearance. The suits were not clubbed, though it related to the same properties and involved the same parties. The suit in O.S.4287/2000 was taken up by the trail court on 27.8.2003, when the memo seeking withdrawal of the suit came up for orders. It was then that the petitioners had filed applications to transpose themselves as plaintiffs and resisted the withdrawal of the suit. The suit in O.S.806/2003 was taken up on 5.11.2003, this was the suit in which the interim order of temporary injunction had been granted and which had been questioned in appeal. The suit was permitted to be withdrawn as not pressed without objection by the petitioners. This did not result in the right of the petitioners being lost to continue with the contest in the other suit. Both the suits had not reached the stage of trail. Order XXIII CPC provides for withdrawal and adjustment of suits. Rule 1 A thereof reads as follows: “When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order 1, the court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants”. The trail court has apparently failed to exercise the jurisdiction vested in it in having failed to follow the mandate prescribed above. The appellant and the plaintiffs who had moved this court in the above appeal seeking dismissal of the suits as settled out of court, never chose to present any settlement deed or the other terms of settlement which was being claimed as prompting the withdrawal. The least that the trail court ought to have done was to seek the particulars of the alleged terms of settlement. When this was not forthcoming, surely the defendants who sought to transpose themselves as plaintiffs did have a substantial subsisting interest in the suit for partition which was being contested by them. It is also to be noticed that the plaintiffs were claiming that the suits are being withdrawn as settled out of court. Though the courts below have dismissed the two suits as not pressed-any alleged settlement was void. This is evident from a plain reading of Order XXIII Rule 3 read Order XXIII Rule 3B. It is also to be noticed that the plaintiffs were claiming that the suits are being withdrawn as settled out of court. Though the courts below have dismissed the two suits as not pressed-any alleged settlement was void. This is evident from a plain reading of Order XXIII Rule 3 read Order XXIII Rule 3B. The said provisions are extracted for ready reference: “3(1) Compromise of suit Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit): (Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.) (Explanation): an agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1972), shall not be deemed to be lawful within the meaning of this rule.)” (2) Where any such agreement of compromise as is referred to in sub-rule (1) is placed before the court by a party suing or defending in a representative capacity in a suit instituted, conducted or defended under the provisions of Rule 8 of Order 1 of this Code, the Court shall not proceed with the consideration of the same or to pass a decree in accordance therewith without first giving notice of the application for recording such agreement or compromise in the manner prescribed in sub-rule (3) of Rule 8 of Order 1 of this Code for giving notice of the institution of such suit. The expenses of giving such notice shall be done by such party or parties as the Court may direct. (Rule 3 renumbered as 3(1) and sub-rule (2) added by R.O.C.2526/1959) “3B. The expenses of giving such notice shall be done by such party or parties as the Court may direct. (Rule 3 renumbered as 3(1) and sub-rule (2) added by R.O.C.2526/1959) “3B. No agreement compromise to be entered in a representative suit without leave of court (1) No agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the court so recorded shall be void. (2) Before granting such leave, the court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit. Explanation: In this rule, “representative suit” means,- (a) a suit under Section 91 or Section 92, (b) a suit under Rule 8 of Order 1, (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family, (d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.)” The court below could not remain oblivious to these provisions in a seriously contested suit for partition. On merits, the several contentions raised at the hearing of the applications before the trail court and at the hearing of this petition would be relevant at the trail of the suit and not otherwise. In above view of the matter, it is unnecessary to examine the several decisions cited at the bar in disposing of this writ petition. In the result, the above writ petitions are allowed. The impugned order, in the respective petitions, are quashed. The suit in O.S.4287/2000 shall be restored to file. The petitioners herein shall be transposed as the plaintiffs and the suit proceeded with in accordance with law.