10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
11. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of
O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in
setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 439 OF 2022
M/s. Sree Surya Developers and Promoters Vs N. Sailesh Prasad
Bench: M.R. SHAH; SANJIV KHANNA, JJ.
Dated: FEBRUARY 09, 2022
Author: M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and
order dated 01.10.2019 passed by the High Court for the State of
Telangana at Hyderabad in Appeal Suit No.454 of 2019 by which the High
Court has allowed the said appeal preferred by the respondent No.1 herein
– original plaintiff and has quashed and set aside the order passed by the
learned II Additional District Judge, Ranga Reddy District dated 02.05.2019
in I.A. No.108 of 2019 in O.S. No.537 of 2018 by which the learned Trial
Court rejected the plaint under Order 7 Rule 11(d) of the Civil Procedure
Code (hereinafter referred to as “CPC”), the original defendants to O.S.
No.537 of 2018 have preferred the present appeals.
2. The facts leading to the present appeals in nutshell are as under:-
2.1 That the suit schedule property was gifted to the respondent No.1
herein – original plaintiff during his minority by his paternal grandmother
(respondent No.2 herein and original defendant in O.S. No.537 of 2018)
vide registered Gift Deed dated 13.02.2003. That the said Gift Settlement
Deed was revoked vide Revocation of Gift Deed dated 10.12.2004 by the
grandmother of the respondent No.1 herein – original plaintiff. That
thereafter a registered Development Agreement-cum- General Power of
Attorney dated 18.01.2008 came to be executed between the grandmother
of the plaintiff and the appellant herein – M/s. Sree Surya Developers and
Promoters – original defendant No.2. It appears that under the said
Development Agreement, the grandmother was entitled to 35,000 sq. ft. of
2
fixed saleable super built-up area along with proportionate number of car
parking spaces and undivided share in the land.
2.2 The father of the respondent No.1 – original plaintiff (original
respondent No.3 herein and defendant No.3 in O.S. No.537 of 2018) filed a
suit being O.S. No.1750 of 2015 as the next friend of then minor
respondent No.1 herein seeking for declaration that revocation of Gift Deed
dated 10.04.2004 as being illegal and not binding on the plaintiff therein
and also for perpetual injunction. Subsequently, a compromise was arrived
at between the parties to O.S. No.1750 of 2015 vide Compromise Deed
Dated 30.12.2015. Under the Compromise, it was agreed that the
respondent No.1 herein – original plaintiff would be entitled to entire 35,000
sq. ft. of the constructed area, which was agreed to be allocated to the
grandmother under the Development Agreement. It was further agreed as
per the Compromise Decree that the Developer would be entitled to assign
the development rights accrued to it under the said Development
Agreement to the third parties. In furtherance of the compromise, I.A. No.31
of 2016 under Order XXIII Rule 3 CPC came to be filed alongwith the
Compromise Memo praying for passing of decree in terms thereof. The
father of the respondent No.1 (respondent No.3 herein – original defendant
No.3) filed I.A. in the said suit under Rule 172 of the Civil Rules of Practice
seeking permission to act on behalf of the respondent No.1 herein and the
Trial Court was pleased to permit him to do so.
2.3 Thereafter, the Compromise Decree came to be passed by the VIII
Additional Senior Civil Judge, RR District dated 13.01.2016 in O.S.
No.1750 of 2015 in terms of the Memorandum of Compromise entered into
by the father on behalf of respondent No.1 herein, the grandmother and the
appellant herein – Developer. It appears that thereafter the appellant –
Developer assigned its development rights under the abovementioned
Development Agreement to respondent No.4 herein under a Deed of
Assignment dated 06.04.2016 and on the basis of the same, the
respondent No.4 has started developing the subject property in O.S.
No.537 of 2018.
2.4 That on attaining the age of majority, the respondent No.1 herein filed
the present suit being O.S. No.537 of 2018 through his General Power of
3
Attorney praying inter alia declaration of right, title and interest over the suit
schedule property and declaration of Compromise Decree. He also prayed
the revocation of deed as null and void.
2.5 That having been served with a notice of the suit, the appellant filed
written statement denying all the material allegations. The appellant also
filed I.A. No.108 of 2019 under order VII Rule 11 CPC for rejection of the
plaint on various grounds and mainly on the ground that the suit for setting
aside the consent decree/Compromise Decree would be barred under
Order XXIII Rule 3A of CPC. The Trial Court vide order dated 02.05.2019
allowed the said I.A. and rejected the plaint on the ground that in view of
Order XIII Rule 3A CPC, no independent suit would be maintainable
against the Compromise Decree.
2.6 Feeling aggrieved and dissatisfied with the order passed by the Trial
Court rejecting the plaint in exercise of powers under Order VII Rule 11(d)
CPC on the ground that in view of the provisions of Order XXIII Rule 3A
CPC, no independent suit would be maintainable against the Compromise
Decree, the original plaintiff preferred the present appeal before the High
Court.
2.7 By the impugned judgment and order, the High Court has allowed the
said appeal and has quashed and set aside the order passed by the Trial
Court rejecting the plaint and has remanded the matter to the Trial Court by
observing that the effect of the provisions of Order XXXII Rules 1 to 7 CPC
has not been considered by the Trial court, which would have a direct
bearing on the validity of the Compromise Decree dated 13.01.2016 in O.S.
No.1750 of 2015.
2.8 Feeling aggrieved and dissatisfied with the impugned judgment and
order passed by the High court, the original defendant Nos. 2 and 4 –
Developer and its Assignee have preferred the present appeals.
3. Shri Mukul Rohatgi, learned Senior Advocate appearing on behalf of the
appellant – Developer has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a grave error in
quashing and setting aside the order passed by the Trial court rejecting the
plaint in exercise of powers under Order VII Rule 11 CPC holding that in
4
view of Order XXIII Rule 3A CPC, no independent suit would be
maintainable against the Compromise Decree.
3.1 It is submitted that Order XXIII Rule 3 CPC provides for compromise of
suit. It is submitted that by way of amendment in 1976 made by Act No.104
of 1976, Rule 3A has been inserted, which specifically provides that no suit
shall lie to set aside a decree on the ground that the compromise on which
the decree is based was not lawful. It is submitted that therefore the
present suit filed by the respondent No.1 herein – original plaintiff
challenging the Compromise Decree would be barred under Order XXIII
Rule 3A CPC and therefore the Trial Court rightly rejected the plaint.
3.2 It is further submitted by Shri Rohatgi, learned Senior Advocate
appearing on behalf of the appellant – Developer and the learned counsel
for the Assignee that as held by this Court in a catena of decisions, the only
remedy available to the aggrieved party would be to submit an appropriate
application before the same Court which recorded the compromise.
Reliance is placed on decisions of this Court in the case of Banwari Lal
Vs. Chando Devi, (1993) 1 SCC 581; Pushpa Devi Bhagat Vs. Rajinder
Singh & Ors., (2006) 5 SCC 566; Horil Vs. Keshav, (2012) 5 SCC 525; R.
Rajanna Vs. S.R. Venkataswamy & Ors., (2014) 15 SCC 471 and
recently in R. Janakiammal Vs. S.K. Kumarasamy, (2021) 9 SCC 114.
3.3 It is submitted that in the present case as such the original plaintiff had
already filed an application under Order XXIII Rule 3A before the same
court which passed the consent Compromise Decree. It is submitted that in
the present case even the original plaintiff has filed a first appeal under
Order XLIII before the first Appellate court challenging the Compromise
Decree. It is submitted that therefore as such the plaintiff has already
availed the other remedies available to him. It is submitted that therefore
the present suit is nothing but an abuse of process of law. It is submitted
that in any case, the substantive independent suit questioning the
Compromise Decree shall not be maintainable in view of Order XXIII Rule
3A CPC.
3.4 It is further submitted by Shri Rohatgi, learned Senior Advocate
appearing on behalf of the appellant that in the present case the
5
respondent No.1 herein – original plaintiff has indulged in clever drafting
seeking one relief by way of drafting multiple prayers. It is submitted that
the only relief that the plaintiff seeks is setting aside the Compromise
Decree dated 13.01.2016 which he has sought by drafting multiple prayers
in order to avoid the bar to suit envisaged under Order XXIII Rule 3A of
CPC, which in other words is mere clever drafting. It is submitted that as
held by this Court in a catena of decisions by mere clever drafting of the
plaint, the plaintiff cannot be permitted to maintain the suit, which otherwise
would not be maintainable and/or barred by any law. It is further observed
and held by this Court that if clever drafting of the plaint has created the
illusion of a cause of action, the court will nip it in the bud at the earliest so
that bogus litigation will end at the earlier stage. Reliance is placed on the
decisions of this Court in the case of T. Arivandandam Vs. T.V. Satyapal
and Anr., (1977) 4 SCC 467; Madanuri Sri Rama Chandra Murthy Vs.
Syed Jalal, (2017) 13 SCC 174; Canara Bank Vs. P. Selathal and Ors.,
(2020) 13 SCC 143; and Raghwendra Sharan Singh Vs. Ram Prasanna
Singh, (2020) 16 SCC 601.
3.5 Shri Rohatgi, learned Senior Advocate has further submitted that even
otherwise the impugned judgment and order passed by the High Court is
unsustainable. It is submitted that in the entire judgment, there is no
discussion by the High Court on the maintainability of the suit and/or any
discussion on Order XXIII Rule 3A CPC on the basis of which the Trial
Court rejected the plaint.
3.6 It is submitted that on the contrary, the High Court has gone into the
validity of the Compromise Decree considering Order XXXII Rules 1 to 7
CPC and the High Court has virtually given the findings relying upon Order
XXXII Rule 7 CPC that the Compromise Decree was not binding to the
plaintiff. It is submitted that the High Court ought to have addressed itself to
the maintainability of the suit and at this stage the High Court was not
required to consider at all on the validity of the Compromise Decree.
3.7 Number of other submissions have been made by learned counsel
appearing on behalf of the appellant on the validity of the Compromise
Decree. However, for the reasons stated hereinbelow, we propose to
consider the only issue with respect to maintainability of the suit and the
6
issue before this Court is not on the validity of the Compromise Decree,
therefore, we do not propose to deal with any of the submissions on merits
on the validity of the Compromise Decree.
4. Present appeals are vehemently opposed by Shri B. Adinarayana Rao,
learned Senior Advocate appearing on behalf of the original plaintiff(s).
4.1 it is submitted that in the present case, the Compromise Decree is hit
by Order XXXII Rule 7 CPC. It is submitted that therefore on attaining the
majority immediately when respondent No.1 herein – original plaintiff
instituted a suit for various reliefs, which otherwise can be granted in a
substantive independent suit, the High Court has rightly set aside the order
passed by the Trial Court rejecting the plaint.
4.2 It is vehemently submitted by learned Senior Advocate appearing on
behalf of the original plaintiff that in the present case, the reliefs prayed in
the suit are not only with respect to the Compromise Decree, but other
reliefs are sought for which an independent substantive suit shall be
maintainable. It is submitted that as such the plaintiff has not prayed to set
aside the Compromise Decree. It is submitted that what is prayed is to
declare that the Compromise Decree is not binding on him. It is submitted
that therefore for the other reliefs sought, it can be said that an independent
suit under Order XXIII Rule 3A shall not be barred.
4.3 However, the learned Senior Advocate appearing on behalf of the
respondents – original plaintiff(s) is not disputing that the plaintiff has
already filed an application under Order XXIII Rule 3A before the same
Court, which passed the Compromise Decree. He is also not in a position
to dispute that in the said application, the plaintiff can very well make
submission on the validity of the Compromise Decree on whatever
grounds, which may be available to him including non-compliance of Order
XXXII Rule 7 CPC.
5. We have heard the learned counsel appearing on behalf of the
respective parties at length.
6. At the outset, it is required to be noted that in the present case, the Trial
Court rejected the plaint of O.S. No.537 of 2018 in exercise of powers
7
under Order VII Rule 11 CPC on the ground that the said suit would not be
maintainable in view of specific bar under Order XXIII Rule 3A CPC. The
High Court by the impugned judgment and order has set aside the said
order and has remanded the matter to the Trial Court by observing that
while passing the order rejecting the plaint, the Trial Court had not
considered the provisions of Order XXXII Rules 1 to 7 CPC. However, it is
required to be noted that while passing the impugned judgment and order,
the High Court has not at all dealt with and considered the provisions of
Order XXIII Rule 3A CPC and has not considered at all whether in fact the
suit challenging the Compromise Decree and/or for the reliefs sought in the
suit would be maintainable or not. What was required to be considered by
the High Court was whether the independent suit questioning the
Compromise Decree would be maintainable or not. The aforesaid crucial
aspect has not been dealt with by the High Court at all and High Court has
gone into the validity of the Compromise Decree in view of Order XXXII
Rule 7 CPC. At the stage of deciding the application under Order VII Rule
11 CPC, the only thing which was required to be considered by the High
Court was whether the suit would be maintainable or not and that the suit
challenging the Compromise Decree would be maintainable or not in view
of Order XXIII Rule 3A CPC and at this stage, the High Court / Court was
not required to consider on merits the validity of the Compromise Decree.
7. Now, so far as the main issue whether the Trial Court rightly rejected the
plaint in exercise of powers under Order VII Rule 11 CPC on the ground
that an independent suit challenging the Compromise Decree would be
barred in view of Order XXIII Rule 3A CPC is concerned, on plain reading
of Order XXIII Rule 3A CPC, the Trial Court was justified in rejecting the
plaint. Order XXIII Rule 3A CPC, which has been inserted by amendment
in 1976 reads as under:-
“3A. Bar to suit. -- No suit shall lie to set aside a decree on the ground that
the compromise on which the decree is based was not lawful.”
8. Therefore, on plain reading of Order XXIII Rule 3A CPC, no suit shall lie
to set aside a decree on the ground that the compromise on which the
decree is based was not lawful. Identical question came to be considered
by this Court in the case of R. Janakiammal (supra). It is observed and
8
held by this Court that Rule 3A of Order XXIII bars the suit to set aside the
decree on the ground that the compromise on which decree was passed
was not lawful. It is further observed and held that an agreement or
compromise which is clearly void or voidable shall not be deemed to be
lawful and the bar under Rule 3A shall be attracted if compromise on the
basis of which the decree was passed was void or voidable. In this case,
this Court had occasion to consider in detail Order XXIII Rule 3 as well as
Rule 3A. The earlier decisions of this Court have also been dealt with by
this Court in paragraphs 53 to 57 as under:-
“53. Order 23 Rule 3 as well as Rule 3-A came for consideration before
this Court in large number of cases and we need to refer to a few of them
to find out the ratio of judgments of this Court in context of Rule 3 and Rule
3- A. In Banwari Lal v. Chando Devi, (1993) 1 SCC 581, this Court considered
Rule 3 as well as Rule 3-A of Order 23. This Court held that the object of
the Amendment Act, 1976 is to compel the party challenging the
compromise to question the court which has recorded the compromise.
In paras 6 and 7, the following was laid down: (SCC pp. 584-85)
“6. The experience of the courts has been that on many occasions parties
having filed petitions of compromise on basis of which decrees are
prepared, later for one reason or other challenge the validity of such
compromise. For setting aside such decrees suits used to be filed which
dragged on for years including appeals to different courts. Keeping in view
the predicament of the courts and the public, several amendments have
been introduced in Order 23 of the Code which contain provisions relating
to withdrawal and adjustment of suit by the Civil Procedure Code
(Amendment) Act, 1976. Rule 1 Order 23 of the Code prescribes that at
any time after the institution of the suit, the plaintiff may abandon his suit or
abandon a part of his claim. Rule 1(3) provides that where the Court is
satisfied: (a) that a suit must fail by reason of some formal defect, or (b) that
there are sufficient grounds for allowing the plaintiff to institute a fresh suit
for the subject-matter of a suit or part of a claim, it may, on such terms as it
thinks fit, grant the plaintiff permission to withdraw such suit with liberty to
institute a fresh suit. In view of Rule 1(4) if the plaintiff abandons his suit or
withdraws such suit without permission referred to above, he shall be
9
precluded from instituting any such suit in respect of such subject-matter.
Rule 3 Order 23 which contained the procedure regarding compromise of
the suit was also amended to curtail vexatious and tiring litigation while
challenging a compromise decree. Not only in Rule 3 some special
requirements were introduced before a compromise is recorded by the
court including that the lawful agreement or a compromise must be in
writing and signed by the parties, a proviso with an Explanation was also
added which is as follows:
‘Provided that where it is alleged by one party and denied by the other that
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 1872), shall not be deemed to be
lawful within the meaning of this Rule.’
7. By adding the proviso along with an Explanation the purpose and the
object of the amending Act appears to be to compel the party challenging
the compromise to question the same before the court which had recorded
the compromise in question. That court was enjoined to decide the
controversy whether the parties have arrived at an adjustment in a lawful
manner. The Explanation made it clear that an agreement or a compromise
which is void or voidable under the Contract Act shall not be deemed to be
lawful within the meaning of the said Rule. Having introduced the proviso
along with the Explanation in Rule 3 in order to avoid multiplicity of suit and
prolonged litigation, a specific bar was prescribed by Rule 3-A in respect of
institution of a separate suit for setting aside a decree on the basis of a
compromise saying:
‘3-A. Bar to suit. — No suit shall lie to set aside a decree on the ground
that the compromise on which the decree is based was not lawful.’
54. The next judgment to be noted is Pushpa Devi Bhagat v. Rajinder Singh,
(2006) 5 SCC 566, R.V. Raveendran, J. speaking for the Court noted the
10
provisions of Order 23 Rule 3 and Rule 3-A and recorded his conclusions in
para 17 in the following words: (SCC p. 576)
“17. The position that emerges from the amended provisions of Order 23
can be summed up thus:
(i) No appeal is maintainable against a consent decree having regard to the
specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the
compromise (or refusing to record a compromise) in view of the deletion of
clause (m) of Rule 1 Order 43.
(iii) 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 in Rule 3-A.
(iv) A consent decree operates as an estoppel and is valid and binding
unless it is set aside by the court which passed the consent decree, by an
order on an application under the proviso to Rule 3 Order 23.
Therefore, the only remedy available to a party to a consent decree to
avoid such consent decree, is to approach the court which recorded the
compromise and made a decree in terms of it, and establish that there was
no compromise. In that event, the court which recorded the compromise
will itself consider and decide the question as to whether there was a valid
compromise or not. This is so because a consent decree is nothing but
contract between parties superimposed with the seal of approval of the
court. The validity of a consent decree depends wholly on the validity of the
agreement or compromise on which it is made. The second defendant, who
challenged the consent compromise decree was fully aware of this position
as she filed an application for setting aside the consent decree on
21-8-2001 by alleging that there was no valid compromise in accordance
with law. Significantly, none of the other defendants challenged the consent
decree. For reasons best known to herself, the second defendant within a
few days thereafter (that is on 27-8-2001) filed an appeal and chose not to
pursue the application filed before the court which passed the consent
11
decree. Such an appeal by the second defendant was not maintainable,
having regard to the express bar contained in Section 96(3) of the Code.”
55. The next judgment is R. Rajanna v. S.R. Venkataswamy, (2014) 15 SCC
471 in which the provisions of Order 23 Rule 3 and Rule 3-A were again
considered. After extracting the aforesaid provisions, the following was held
by this Court in para 11: (SCC p. 474)
“11. It is manifest from a plain reading of the above that in terms of the
proviso to Order 23 Rule 3 where one party alleges and the other denies
adjustment or satisfaction of any suit by a lawful agreement or compromise
in writing and signed by the parties, the Court before whom such question
is raised, shall decide the same. What is important is that in terms of
Explanation to Order 23 Rule 3, the agreement or compromise shall not be
deemed to be lawful within the meaning of the said Rule if the same is void
or voidable under the Contract Act, 1872. It follows that in every case
where the question arises whether or not there has been a lawful
agreement or compromise in writing and signed by the parties, the question
whether the agreement or compromise is lawful has to be determined by
the court concerned. What is lawful will in turn depend upon whether the
allegations suggest any infirmity in the compromise and the decree that
would make the same void or voidable under the Contract Act. More
importantly, Order 23 Rule 3-A clearly bars a suit to set aside a decree on
the ground that the compromise on which the decree is based was not
lawful. This implies that no sooner a question relating to lawfulness of the
agreement or compromise is raised before the court that passed the decree
on the basis of any such agreement or compromise, it is that court and that
court alone who can examine and determine that question. The court
cannot direct the parties to file a separate suit on the subject for no such
suit will lie in view of the provisions of Order 23 Rule 3-A CPC. That is
precisely what has happened in the case at hand. When the appellant filed
OS No. 5326 of 2005 to challenge the validity of the compromise decree,
the court before whom the suit came up rejected the plaint under Order 7
Rule 11 CPC on the application made by the respondents holding that such
a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having thus
got the plaint rejected, the defendants (the respondents herein) could
12
hardly be heard to argue that the plaintiff (the appellant herein) ought to
pursue his remedy against the compromise decree in pursuance of OS No.
5326 of 2005 and if the plaint in the suit has been rejected to pursue his
remedy against such rejection before a higher court.”
56. The judgments of Pushpa Devi [Pushpa Devi Bhagat v. Rajinder Singh,
(2006) 5 SCC 566] as well as Banwari Lal [Banwari Lal v. Chando Devi, (1993)
1 SCC 581] were referred to and relied on by this Court. This Court held
that no sooner a question relating to lawfulness of the agreement or
compromise is raised before the court that passed the decree on the basis
of any such agreement or compromise, it is that court and that court alone
which can examine and determine that question.
57. In subsequent judgment, Triloki Nath Singh v. Anirudh Singh, (2020) 6
SCC 629, this Court again referring to earlier judgments reiterated the
same proposition i.e. the only remedy available to a party to a consent
decree to avoid such consent decree is to approach the court which
recorded the compromise and separate suit is not maintainable. In paras
17 and 18, the following has been laid down: (SCC p. 638)
“17. By introducing the amendment to the Civil Procedure Code
(Amendment) Act, 1976 w.e.f. 1-2-1977, the legislature has brought into
force Order 23 Rule 3-A, which creates bar to institute the suit to set aside
a decree on the ground that the compromise on which decree is based was
not lawful. The purpose of effecting a compromise between the parties is to
put an end to the various disputes pending before the court of competent
jurisdiction once and for all.
18. Finality of decisions is an underlying principle of all adjudicating forums.
Thus, creation of further litigation should never be the basis of a
compromise between the parties. Rule 3-A Order 23 CPC put a specific bar
that no suit shall lie to set aside a decree on the ground that the
compromise on which the decree is based was not lawful. The scheme of
Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties
to amicably come to a settlement which is lawful, is in writing and a
voluntary act on the part of the parties. The court can be instrumental in
having an agreed compromise effected and finality attached to the same.
13
The court should never be party to imposition of a compromise upon an
unwilling party, still open to be questioned on an application under the
proviso to Order 23 Rule 3 CPC before the court.”
That thereafter it is specifically observed and held that a party to a consent
decree based on a compromise to challenge the compromise decree on
the ground that the decree was not lawful i.e., it was void or voidable has to
approach the same court, which recorded the compromise and a separate
suit challenging the consent decree has been held to be not maintainable.
9. In view of the above decisions of this Court, the Trial Court was
absolutely justified in rejecting the plaint on the ground that the suit for the
reliefs sought challenging the Compromise Decree would not be
maintainable.
10. Now, so far as the submission on behalf of the plaintiff that in the suit
the plaintiff has not specifically prayed for setting aside the Compromise
Decree and what is prayed is to declare that the Compromise Decree is not
binding on him and that for the other reliefs sought, the suit would not be
barred and still the suit would be maintainable is concerned, the aforesaid
cannot be accepted.
10.1 As held by this Court in a catena of decisions right from 1977 that a
mere clever drafting would not permit the plaintiff to make the suit
maintainable which otherwise would not be maintainable and/or barred by
law. It has been consistently held by this Court that if clever drafting of the
plaint has created the illusion of a cause of action, the court will nip it in the
bud at the earliest so that bogus litigation will end at the earlier stage.
10.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC
467, it is observed and held as under;-
“5. We have not the slightest hesitation in condemning the petitioner for the
gross abuse of the process of the court repeatedly and unrepentantly
resorted to. From the statement of the facts found in the judgment of the
High Court, it is perfectly plain that the suit now pending before the First
Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in
receiving plaints. The learned Munsif must remember that if on a
meaningful — not formal — reading of the plaint it is manifestly vexatious,
and meritless, in the sense of not disclosing a clear right to sue, he should
exercise his power under Order 7 Rule 11 CPC taking care to see that the
ground mentioned therein is fulfilled. And, if clever drafting has created the
illusion of a cause of action, nip it in the bud at the first hearing by
examining the party searchingly under Order 10 CPC. An activist Judge is
the answer to irresponsible law suits.”
10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4
SCC 364, this Court has observed and held that when the suit is barred by
any law, the plaintiff cannot be allowed to circumvent that provision by
means of clever drafting so as to avoid mention of those circumstances, by
which the suit is barred by law of limitation.
11. If we consider the reliefs of declaration of title, recovery of possession,
cancellation of revocation of Gift Deed, declaration for DGPA and Deed of
Assignment-cum-DGPA, the said reliefs can be granted only if the
Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is
set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever
drafting wants to get his suit maintainable, which otherwise would not be
maintainable questioning the Compromise Decree. All the aforesaid reliefs
were subject matter of earlier suits and thereafter also subject matter of
O.S. No.1750 of 2015 in which the Compromise Decree has been passed.
Therefore, it is rightly held by the Trial Court that the suit in the present
form and for the reliefs sought would be barred under Order XXIII Rule 3A
CPC and therefore the Trial Court rightly rejected the plaint in exercise of
powers under Order VII Rule 11(d) of the CPC. The High Court has erred in
setting aside the said order by entering into the merits of the validity of the
Compromise Decree on the ground that the same was hit by Order XXXII
Rule 7 CPC, which was not permissible at this stage of deciding the
application under Order VII Rule 11 CPC and the only issue which was
required to be considered by the High Court was whether the suit
challenging the Compromise Decree would be maintainable or not.
12. As observed hereinabove and it is not in dispute that as such the
respondent No.1 – original plaintiff has already moved an appropriate
application before the concerned Court, which passed the decree setting
aside the compromise Decree by submitting an application under Order
XXIII Rule 3A CPC therefore the said application will have to be decided
and disposed of in accordance with law in which all the defences /
contentions which may have been available to the respective parties on the
validity of the Compromise Decree would have to be gone into by the
concerned court in accordance with law and on its own merits.
13. In view of the above and for the reasons stated above, the present
appeals succeed. The impugned judgment and order passed by the High
Court allowing the appeal and quashing and setting aside the order passed
by the II Additional District Judge, Ranga Reddy District passed on
02.05.2019 in I.A. No. 108 of 2019 in O.S. No.537 of 2018 is hereby
quashed and set aside. The order passed by the Trial Court dated
02.05.2019 in I.A. No.108 of 2019 in O.S. No. 537 of 2018 rejecting the
plaint is hereby restored. However, it is observed that we have not
expressed anything on merits on validity of the Compromise Decree and
the same shall have to be decided and considered by the Court which
passed the decree in an application under Order XXIII Rule 3A CPC, which
as observed hereinabove has been filed by the original plaintiff and the said
application be decided and disposed of by the concerned Court in
accordance with law and on its own merits and the contentions/defences
which may be available to the respective parties on the validity of the
Compromise Decree are kept open to be considered by the concerned
Court in accordance with law and on its own merits.
Present appeals are allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
Pending application(s), if any, also stand disposed of.
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