Sree Surya Developers and Promoters vs N. Sailesh Prasad

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 439 OF 2022
M/s. Sree Surya Developers and Promoters ...Appellant(s)
Versus
N. Sailesh Prasad and Ors. ...Respondent(s)
WITH
CIVIL APPEAL NOS. 440-441 OF 2022
M/s. Raja Pushpa Properties Pvt. Ltd. ...Appellant(s)
Versus
N. Sailesh Prasad and Ors. ...Respondent(s)
J U D G M E N T
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
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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Settlement Deed was revoked vide Revocation of Gift Deed dated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-cumGeneral 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 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
2
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
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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 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
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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 view of Order XXIII Rule 3A CPC, no independent suit
would be maintainable against the Compromise Decree.
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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
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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
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
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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.
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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
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
9
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 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
10
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
11
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 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.
12
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 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
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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
14
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
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
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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 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
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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
17
3-A CPC. Having thus got the plaint rejected,
the defendants (the respondents herein) could
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
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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. 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
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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,
20
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
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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
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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.
………………………………….J.
 [M.R. SHAH]
NEW DELHI; ………………………………….J.
FEBRUARY 09, 2022. [SANJIV KHANNA]
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Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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