Supreme Court Overturned The Karnataka High Court Order Restricting To Change The Nature of The Suit.

The Supreme Court overturned The Karnataka High Court Order Restricting To Change The Nature of The Suit where the High Court of Karnataka vide order dated 18.08.2010 had passed an application for the amendment of the plaint moved by Respondent No. 1 and 2. And a cost of Rs. 2000/- was imposed.

Brief Facts:

A suit for partition of ancestral property was moved by Respondents No. 1 and 2. Later they moved an amendment of the plaint application to seek a declaration that the compromise decree dated 14.10.2004 was null and void. The trial court denied the application.

But the High Court has reversed the order of the trial court thereby, changing the nature of the suit from a partition suit to a declaration suit which is impermissible.

It was contended that the compromise decree was passed on 14.10.2004 and following the lines of Order XXIII Rule 3 the same could only be challenged before the court that has granted the said decree.

Being perused the facts of the case the Court has emphasized the well-settled law on compromise decree thereby quoting, Pushpa Devi Bhagat (Dead) through L.R. Sadhna Rai (Smt.) v. Rajinder Singh and others (2006) 5 SCC 566:

“17. The position that emerges from the amended provisions of Order 23 can be summed up thus:

1.No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.

2.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) Rule 1 Order 43.

3.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 3A.

4.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 of Order 23.

The Supreme Court has further stated that no application under Order VI Rule 17 CPC shall be entertained after the trial has begun unless it is shown that despite due diligence the party could not have raised the matter.

And nothing has been stated to this effect by Respondent No. 1 and 2 and all that has been pleaded in mere ground of oversight.

The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of the respondents No. 1 and 2/plaintiffs.

The Hon’ble Supreme Court had referred to M. Revanna v. Anjanamma (Dead) by legal representatives and others (2019) 4 SCC 332 stating that the burden is on the party seeking amendment after the commencement of trial to show that despite due diligence such amendment could not be sought earlier. It is not a matter of right.

10. Initially, the suit was filed for partition and separate possession. By way of amendment, relief of declaration of the compromise decree being null and void was also sought. The same would certainly change the nature of the suit, which may be impermissible.

Date: 29th Feb 2024

Case: Basavaraj Versus Indira and Others,

Civil Appeal No. 2886 Of 2012

Bench: C.T. RAVIKUMAR and RAJESH BINDAL