At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE KRISHNA S. DIXIT
For the Appearing Parties: B.K. Sampath Kumar, Ramachandra G. Bhat, V. Mohan, G.B. Sharath Gowda, Advocates.
(Prayer: This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India praying to directing setting aside the order dated 19.10.2020 passed on I.A No. 42 by the Hon’ble VII Additional City Civil and Sessions Judge (CCH 19), Bangalore in O.S. No.525/2008 (AnnexureA herein); and etc.,This Writ Petition is filed Under Articles 226 & 227 of the Constitution of India praying to quash the order on IA No.42 dtd.19.10.2020 passed in O.S.No.525/2008 pending on the file of the Learned VII Addl City Civil and Session Judge (CCH-19) Bangalore Produced at Annexure-D to the W.P.; and etc.)1. Petitioner who happens to be the Defendant-5 in a Partition Suit in O.S.No.525/2008 is knocking at the doors of the Writ Court for assailing the order dated 19.10.2020, a copy whereof is at Annexure-A, whereby learned VII Additional City Civil Judge, Bangalore has refused to record the compromise in question arrived at by & between the Plaintiffs 1 to 5 who happen to be Respondent Nos.1 to 5 herein and Defendant Nos.4, 6 & 7 who happen to be Respondent Nos.9, 10 & 11 herein. In the companion writ petition, the same Plaintiffs 1 to 5, too are laying a challenge to the very same order.2. After service of notice, the contesting Respondent-6 who was originally the Defendant-2 in the partition suit and who on transposition became the Plaintiff-6 having appeared through his counsel vehemently opposes the writ petition contending that the writ petition is not maintainable in view of Triloknath Judgment infra; that the compromise in question is vitiated by fraud & duplication, etc., on which a contract can be voided; he also contends that there is a restraint order and therefore, the transfer of interest in the suit property by way of compromise could not have been done.3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under & for the following reasons:(a) In a suit for a decree of partition ordinarily it is open to some of the parties to enter into a compromise in respect of all or any of the properties, of course, subject to the rider that the same shall not prejudice the interest of other stake holders who are not parties to such compromise; the person(s) upon whom the interest in the subject property devolves by virtue of compromise would only stand in the shoes of parties to the compromise and that who are not signatories are not affected by the same, even remotely; that being the position, the impugned order refusing to record partial compromise in terms of parties & property is unsustainable.(b) This court in more or less a similar fact matrix ie., in SHRI.K.M.MANJUNATH vs SRI. K.RAMALINGA @ RAMALINGAPPA AND OTHERS, 2019 (2) KAR L.R. 621 affirmed by the Apex court vide order dated 06.09.2019 in K.HANUMANTHARAYAPPA Vs. K RAMALINGA @ RAMALINGAPPA & ORS in SLP No.20631/2019 has taken the same view which has not animated the impugned order of the court below.(c) The vehement contention of learned counsel for the transposed Plaintiff-6 i.e., Respondent-6 herein that the compromise is vitiated by fraud & duplicity, and therefore the same cannot be recorded, is bit difficult to countenance inasmuch as such a contention does not avail in the absence of privity of contract; it hardly needs to be stated that a compromise is nothing but a contract and its validity cannot be assailed by strangers to the same, when their interest is not affected thereby; this apart, it hardly needs to be mentioned that the compromise which the parties have arrived at is subject to outcome of the suit.(d) The other contention of Respondent-6 that the Apex Court in TRILOKI NATH SINGH Vs. ANIRUDH SINGH, 2020 SCC ONLINE SC 444 has barred invocation of writ jurisdiction for laying challenge to the impugned orders of the kind is not substantiated; in fact, paras 17 & 19 of the said decision bar the challenge to such orders by way of appeal; even otherwise the fact matrix of the case warrants exercise of writ jurisdiction by this Court constitutionally vested under Article 227 since impugned order is ex facie unsustainable.(e) The last contention of the learned counsel for the Respondent-6 that the compromise would not have been arrived at between the parties concerned since there is status quo order, is bit difficult to sustain; the compromise arguably affects the interest in the property but is not intended to demolish the existing structure in respect of which an undertaking is given by the petitioners, subject to outcome of the suit as reflected at Annexure-K.(f) Finally, one more thing needs to be stated; in all civilized jurisdictions there is a movement for favouring amicable settlements of disputes; even there are such legislative measures for giving effect to the same; the impugned order abhors the same; if some of the parties want to amicably settle the dispute inter se, courts ordinarily should not come in the way unless such a settlement causes prejudice to others, which is not the argued case here; after all, the settlement intended to be brought by the compromise in question, not only will not affect the interest of Respondent-6 but shal
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l be subject to final outcome of the suit, where parties may invoke the doctrine of equity; viewed from any angle the Court below is not justified in refusing to recognize and record the compromise in question.In the above circumstances, these writ petitions succeed; the impugned order is set at naught; the learned Judge of the Court below is directed to record the compromise subject to outcome of the suit and in any circumstance without prejudice to the interest of Plaintiff-6 who happens to be Respondent-6 herein or any other persons who are not signatories thereto.No costs.