Vokkaligara Sangha, by its General Secretary Vs. R.T. Mahendra and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1192534
CourtKarnataka High Court
Decided OnJun-13-2017
Case NumberRegular First Appeal No. 996 of 2009 (DEC)
JudgeThe Honourable Chief Justice Mr. Subhro Kamal Mukherjee &Amp; P.S. Dinesh Kumar
AppellantVokkaligara Sangha, by its General Secretary
RespondentR.T. Mahendra and Others
Excerpt:
(prayer: this rfa is filed under section 96 of cpc against the judgment and decree dated 30.9.2006 passed in o.s.no.5796/2001 on the file of the city civil judge, bangalore (cch.6), rejecting the plaint for declaration and permanent injunction. this rfa having been heard and reserved for judgment on 1.6.2017, coming on for pronouncement of judgment this day, chief justice pronounced the following:) 1. this is an appeal against the judgment and order dated september 30, 2006, passed in original suit no.5796 of 2001, by the city civil court at bengaluru. 2. by the order impugned, the learned trial judge rejected the plaint on account of non-payment of requisite court-fees as directed in the order dated august 24, 2006. 3. this litigation has a chequered history. in 2001, a suit was instituted, inter alia, for a declaration that the plaintiff has been the owner and in possession of the suit schedule property in terms of a deed of trust executed by one puttaswamy and for consequential reliefs. 4. on december 14, 2001, the learned trial judge rejected the plaint, which was assailed in regular first appeal no.313 of 2002. 5. during the pendency of the said appeal, a joint petition for compromise was filed by the parties in the said appeal. the learned advocates appearing for the parties submitted that the suit could be decreed in terms of the said compromise by setting aside the order of rejection of plaint passed by the learned trial judge. 6. this court, on december 19, 2003, allowed the appeal and set aside the judgment and order impugned and remitted the matter back to the learned trial judge with a direction that he would examine the question of passing a decree in terms of the compromise arrived at between the parties, in accordance with law. however, it was directed that, in the event of non-recording of the compromise, the suit filed by the plaintiff could be proceeded with on merits and in accordance with law. the original compromise petition was directed to be returned to the learned advocate, retaining a copy thereof in the records. 7. this order was passed on december 19, 2003, but the plaintiff filed the said joint petition for compromise in the trial court on february 24, 2004. 8. the trial court, by its order dated march 26, 2004, accepted the compromise suggested by the parties and decreed the suit in terms of the said compromise. the office was directed to draw up the decree in terms of the compromise petition subject to payment of appropriate court-fees. 9. the said order of the trial court was challenged before this court in an appeal, which was registered as regular first appeal no.965 of 2004, by one dr.appaji gowda, who was not a party to the suit. 10. by judgment and order dated july 7, 2006, this court dismissed the appeal and the parties to the suit were directed to appear before the learned trial judge on july 26, 2006. the learned trial judge was directed to proceed to determine the appropriate court-fees and to fix up the time limit for payment of the court-fees. 11. the judgment of this court dated july 7, 2006, was assailed in the supreme court of india and it was registered as a civil appeal. 12. the supreme court of india, on august 7, 2009, disposed of the said appeal recording that due to non-payment of court-fees, decree could not be drawn incorporating the terms of settlement entered into between the parties. however, liberty was reserved for the party aggrieved, in the event of mal-administration of the trust or otherwise, to seek for appropriate remedies. 13. in the meantime, on august 24, 2006, the learned trial judge directed drawing up of the decree in terms of the compromise petition as per the order dated march 26, 2004, subject to payment of court-fees by the plaintiff. the plaintiff did not pay the court-fees. consequently, on september 30, 2006, the plaint was rejected for non-payment of court-fees. this appeal was filed only on october 12, 2009. 14. the supreme court of india was not informed of the order dated august 24, 2006. therefore, only the ministerial work of drawing up of the decree was left, upon payment of requisite court-fees. 15. mr.s.s.naganand, learned senior advocate appearing in support of the appeal, argues that for non- payment of court-fees on compromise petition, the plaint could not have been rejected. at best, the compromise petition could have been rejected. 16. we are unable to accept his contentions inasmuch as the order dated march 26, 2004, was impugned in regular first appeal no.965 of 2004 by a third party and the appeal was dismissed. the matter went up to the supreme court of india. the supreme court of india, also, did not upset the said order dated march 26, 2004. liberty was, only, reserved to the party aggrieved to seek for appropriate remedies, in case of mal-administration of the trust properties. 17. the compromise was filed in the high court on december 18, 2003 and, ultimately, the compromise was recorded on march 26, 2004. during the said period, the plaintiff-appellant never raised any dispute as to the compromise and we feel that it is not possible for the plaintiff to challenge the compromise in this appeal against the order of rejection of the plaint for non-payment of court-fees in terms of the order dated august 24, 2006. no explanation is offered by him as to why the court-fees could not be paid by him. 18. proviso to order xxiii, rule 3 of the code of civil procedure, 1908, contemplates that when it has been alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court would decide the question immediately. this opportunity was never availed of by the appellant. the compromise petition was accepted by a detailed order on march 26, 2004, which has been upheld by this court by the judgment and order dated july 7, 2006, in an appeal by a third party. the plaintiff never challenged the said order dated march 26, 2004. the supreme court of india did not set aside the order recording the compromise. therefore, it was expected that this plaintiff-appellant would pay the court-fees in terms of the order recording the compromise. the plaintiff did not appear before the court nor explained as to why court-fees could not be paid. naturally, the trial court rejected the plaint for non-payment of court-fees. 19. we do not find any merit in the appeal. 20. the appeal is dismissed. 21. in view of the dismissal of the appeal, i.a.no.1 of 2015 does not survive for consideration and is, also, dismissed. 22. we make no order as to costs.
Judgment:

(Prayer: This RFA is filed under Section 96 of CPC against the Judgment and Decree Dated 30.9.2006 passed in O.S.No.5796/2001 on the file of the City Civil Judge, Bangalore (CCH.6), rejecting the plaint for Declaration and Permanent Injunction.

This RFA having been heard and reserved for Judgment On 1.6.2017, coming on for pronouncement of Judgment this day, Chief Justice pronounced the following:)

1. This is an appeal against the judgment and order dated September 30, 2006, passed in Original Suit No.5796 of 2001, by the City Civil Court at Bengaluru.

2. By the order impugned, the learned trial Judge rejected the plaint on account of non-payment of requisite court-fees as directed in the order dated August 24, 2006.

3. This litigation has a chequered history. In 2001, a suit was instituted, inter alia, for a declaration that the plaintiff has been the owner and in possession of the suit schedule property in terms of a Deed of Trust executed by one Puttaswamy and for consequential reliefs.

4. On December 14, 2001, the learned trial Judge rejected the plaint, which was assailed in Regular First Appeal No.313 of 2002.

5. During the pendency of the said appeal, a joint petition for compromise was filed by the parties in the said appeal. The learned advocates appearing for the parties submitted that the suit could be decreed in terms of the said compromise by setting aside the order of rejection of plaint passed by the learned trial Judge.

6. This Court, on December 19, 2003, allowed the appeal and set aside the judgment and order impugned and remitted the matter back to the learned trial Judge with a direction that he would examine the question of passing a decree in terms of the compromise arrived at between the parties, in accordance with law. However, it was directed that, in the event of non-recording of the compromise, the suit filed by the plaintiff could be proceeded with on merits and in accordance with law. The original compromise petition was directed to be returned to the learned advocate, retaining a copy thereof in the records.

7. This order was passed on December 19, 2003, but the plaintiff filed the said joint petition for compromise in the trial Court on February 24, 2004.

8. The trial Court, by its order dated March 26, 2004, accepted the compromise suggested by the parties and decreed the suit in terms of the said compromise. The office was directed to draw up the decree in terms of the compromise petition subject to payment of appropriate court-fees.

9. The said order of the trial Court was challenged before this Court in an appeal, which was registered as Regular First Appeal No.965 of 2004, by one Dr.Appaji Gowda, who was not a party to the suit.

10. By judgment and order dated July 7, 2006, this Court dismissed the appeal and the parties to the suit were directed to appear before the learned trial Judge on July 26, 2006. The learned trial Judge was directed to proceed to determine the appropriate court-fees and to fix up the time limit for payment of the court-fees.

11. The judgment of this Court dated July 7, 2006, was assailed in the Supreme Court of India and it was registered as a Civil Appeal.

12. The Supreme Court of India, on August 7, 2009, disposed of the said appeal recording that due to non-payment of court-fees, decree could not be drawn incorporating the terms of settlement entered into between the parties. However, liberty was reserved for the party aggrieved, in the event of mal-administration of the Trust or otherwise, to seek for appropriate remedies.

13. In the meantime, on August 24, 2006, the learned trial Judge directed drawing up of the decree in terms of the compromise petition as per the order dated March 26, 2004, subject to payment of court-fees by the plaintiff. The plaintiff did not pay the court-fees. Consequently, on September 30, 2006, the plaint was rejected for non-payment of Court-fees. This appeal was filed only on October 12, 2009.

14. The Supreme Court of India was not informed of the order dated August 24, 2006. Therefore, only the ministerial work of drawing up of the decree was left, upon payment of requisite court-fees.

15. Mr.S.S.Naganand, learned senior advocate appearing in support of the appeal, argues that for non- payment of court-fees on compromise petition, the plaint could not have been rejected. At best, the compromise petition could have been rejected.

16. We are unable to accept his contentions inasmuch as the order dated March 26, 2004, was impugned in Regular First Appeal No.965 of 2004 by a third party and the appeal was dismissed. The matter went up to the Supreme Court of India. The Supreme Court of India, also, did not upset the said order dated March 26, 2004. Liberty was, only, reserved to the party aggrieved to seek for appropriate remedies, in case of mal-administration of the Trust properties.

17. The compromise was filed in the High Court on December 18, 2003 and, ultimately, the compromise was recorded on March 26, 2004. During the said period, the plaintiff-appellant never raised any dispute as to the compromise and we feel that it is not possible for the plaintiff to challenge the compromise in this appeal against the order of rejection of the plaint for non-payment of Court-fees in terms of the order dated August 24, 2006. No explanation is offered by him as to why the court-fees could not be paid by him.

18. Proviso to Order XXIII, Rule 3 of the Code of Civil Procedure, 1908, contemplates that when it has been alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court would decide the question immediately. This opportunity was never availed of by the appellant. The compromise petition was accepted by a detailed order on March 26, 2004, which has been upheld by this Court by the judgment and order dated July 7, 2006, in an appeal by a third party. The plaintiff never challenged the said order dated March 26, 2004. The Supreme Court of India did not set aside the order recording the compromise. Therefore, it was expected that this plaintiff-appellant would pay the court-fees in terms of the order recording the compromise. The plaintiff did not appear before the Court nor explained as to why court-fees could not be paid. Naturally, the trial Court rejected the plaint for non-payment of court-fees.

19. We do not find any merit in the appeal.

20. The appeal is dismissed.

21. In view of the dismissal of the appeal, I.A.No.1 of 2015 does not survive for consideration and is, also, dismissed.

22. We make no order as to costs.