IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 39206 of 2003(P)
1. AASSYA
... Petitioner
Vs
1. JAMEELATH BEEVI
... Respondent
For Petitioner :SRI.C.A.CHACKO
For Respondent :SRI.K.K.DINESH KUMAR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :05/01/2011
O R D E R
HARUN-UL-RASHID,J.
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W.P.(C).NO. 39206 OF 2003
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DATED THIS THE 5TH DAY OF JANUARY, 2011
JUDGMENT
This writ petition is filed seeking the following reliefs.
“i) Set aside Ext.P3 judgment and decree dated
3/11/1999 passed by the Sub Court,
Sulthanbatheri in O.S.No.24/1992, forthwith;
ii) Direct the Sub Court, Sulthanbatheri to
dispose of O.S.No.24/1992 on merits, after
providing opportunity to adduce evidence of the
petitioner.”
2. Petitioner is the additional 11th defendant in
O.S.No.24/1992 on the file of the Sub Court, Sulthanbatheri. The
suit was filed by respondents 1 and 2 for partition and separate
possession of the plaintiffs’ share. Admittedly, the plaintiffs and
defendants are sharers. Additional defendants 7 to 11 filed a joint
written statement (Ext.P11) contending that the plaint schedule
property is not partible. Additional defendants 7 to 11 in the suit
are the legal heirs of the deceased lst defendant.
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3. The petitioner submits that during the pendency of the
suit the dispute between the plaintiff and the 10th defendant has
been settled. They have filed a compromise petition seeking to
pass a decree in terms of the compromise. Ext.P2 is the said
compromise petition. The signatories are only the plaintiff and the
10th defendant. The learned Sub Judge passed Ext.P3 decree on
3/11/1999 in terms of the compromise. The compromise was
recorded as if all the parties to the suit consented for passing a
compromise decree. In Ext.P3 it is stated that “Paries present.
They filed compromise. Recorded. Suit decreed in terms of
compromise.” As I said earlier, there are 11 defendants in the suit.
The suit was for partition. Compromise was between the plaintiffs
and only one out of 11 defendants. Ext.P2 compromise petition
itself shows that other defendants are not parties to the compromise
petition. No doubt, the compromise entered is by some of the
parties. In Ext.P3 judgment it is stated that all the parties to the suit
entered into a compromise and therefore a decree was passed in
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terms of the compromise, which is against the facts of the case.
Ext.P3 judgment and decree passed without the junction of all the
parties to the suit is illegal. If the said decree is allowed to operate,
the same would cause serious prejudice and irreparable injury to the
defendants, who were not parties to the compromise. It is pointed
out that the compromise decree and judgment were passed without
the knowledge and concurrents of all the parties to the suit.
4. In the circumstances, Ext.P3 judgment and decree
passed by the learned Sub Judge in O.S.No.24/1992 is set aside.
The learned Sub Judge is directed to proceed with the suit as if
there was no compromise entered into between the parties. Since
the suit is of the year 1992, the Sub Court shall expedite the trial of
the suit and dispose of the same within a period of six months from
the date of appearance of the parties.
5. The learned counsel for the 10th defendant (11th
respondent herein) submits that he paid a sum of Rs.10,000/- in
terms of Ext.P2 compromise and requested this Court to direct the
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plaintiffs to return the said amount to him. The 10th defendant is at
liberty to approach the Sub Court, Sulthanbatheri for appropriate
relief. The parties shall appear before the Sub Court,
Sulthanbatheri on 3rd February, 2011.
Writ Petition is disposed of as above.
Sd/-
HARUN-UL-RASHID,
Judge.
kcv.