Supreme Court of India
BASAVARAJversusINDIRA AND OTHERS
- Citation
- 2024 INSC 151
- Decided
- 29 February 2024
- Disposal
- Appeal(s) allowed
- Bench
- C T RAVIKUMAR
Holding
An amendment that changes the fundamental character of a suit and is filed beyond the limitation period for challenging a compromise decree cannot be allowed under Order VI Rule 17 of the CPC.
Summary
The respondents filed a suit for partition of ancestral property in 2005, acknowledging an earlier compromise decree dated 14 Oct 2004. At the final stage of trial, they sought to amend the plaint to include a prayer that the compromise decree be declared null and void, alleging oversight and mistake. The trial court rejected the amendment, but the Karnataka High Court allowed it, changing the nature of the suit from partition to declaration. The Supreme Court examined whether such amendment was permissible under Order VI Rule 17 of the CPC, considering the principles of due diligence, prejudice, and the limitation period for challenging a consent decree. It held that the amendment fundamentally altered the character of the suit, was filed five years after the decree—beyond the three‑year limitation—and would prejudice the appellant, and that a consent decree can be challenged only before the court that passed it. Consequently, the Court set aside the High Court order, dismissed the amendment application, and awarded costs to the appellant.
Issues considered
- Whether an amendment to a plaint seeking a declaration that a compromise decree is null and void can be allowed at the stage of arguments under Order VI Rule 17 of the CPC.
- Whether the amendment changes the fundamental nature of the suit and therefore is impermissible.
- Whether the three‑year limitation period for challenging a compromise decree bars the amendment.
- Whether a party may challenge a consent decree in a different suit when not all parties to the decree are before the court.
Legislation cited
Subjects
Application for amendmentDue diligenceCommencement of trialSuit for partition and separate possessionCompromise decreeOversight and by mistakeDelayConsent decree
Judgment
[2024] 2 S.C.R. 935 : 2024 INSC 151
Basavaraj
v.
Indira and Others
(Civil Appeal No. 2886 of 2012)
29 February 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]
Issue for Consideration
High Court, if justified in allowing the amendment application,
changing the nature of suit from partition to declaration.
Headnotes
Code of Civil Procedure, 1908 – Ord. VI r. 17 – Amendment
of pleadings – When allowed – On facts, suit for partition
and separate possession – When the matter reached
the stage of arguments, application for amendment of
the plaint filed by the respondents No. 1 and 2, seeking
relief of declaration of the earlier compromise decree
being null and void, pleading oversight and mistake,
on the part of the respondents No. 1 and 2 – Trial court
dismissed the application, however, the High Court
allowed the same – Correctness:
Held: Application for amendment may be rejected if it seeks
to introduce totally different, new and inconsistent case or
changes the fundamental character of the suit – Ord. VI
r. 17 prevents an application for amendment after the trial
has commenced unless the Court comes to the conclusion
that despite due diligence the party could not have raised
the issue before the commencement of trial – Important
factor, to be considered is as to whether the amendment
would cause prejudice to the other side or it fundamentally
changes the nature and character of the case or a fresh suit
on the amended claim would be barred on the date of filing
the application – On facts, the relief sought would certainly
change the nature of the suit, which may be impermissible –
If the amendment is allowed, it would certainly prejudice the
* Author
936 [2024] 2 S.C.R.
Digital Supreme Court Reports
appellant – What cannot be done directly, cannot be allowed
to be done indirectly – Application for amendment was filed
5 years after passing of the compromise decree, which is
sought to be challenged by way of amendment – Limitation
for challenging any decree is three years – As with the
passage of time, right had accrued in favour of the appellant
with reference to challenge to the compromise decree, the
same cannot be taken away on account of delay in filing
the application – Even if on any ground the amendment
could be permitted, still no relief could be claimed as all
the parties thereto were not before the Court in the suit in
question – Impugned order passed by the High Court is set
aside – Application for amendment of the plaint is dismissed.
[Paras 8-14]
Code of Civil Procedure, 1908 – Ord. 23 – Compromise
decree – Challenge to, when:
Held: Appeal is not maintainable against a consent decree –
No separate suit can be filed – Consent decree operates as
an estoppel and binding unless it is set aside by the court by
an order on an application under the proviso to Order XXIII
r. 3 – Only remedy available to a party to a consent decree
is to approach the Court which recorded the compromise
as it was opined to be nothing else but a contract between
the parties superimposed with the seal of approval of the
Court. [Para 7]
Case Law Cited
Revajeetu Builders and Developers v. Narayanaswamy
and sons and others, [2009] 15 SCR 103 : (2009) 10
SCC 84 – relied on.
Vidyabai and others v. Padmalatha and another, [2008]
17 SCR 505 : (2009) 2 SCC 409; Dondapati Narayana
Reddy v. Duggireddy Venkatanarayana Reddy and
others, (2001) 8 SCC 115; Estralla Rubber v. Dass
Estate (P) Ltd., [2001] Suppl. 3 SCR 68 : (2001) 8
SCC 97; Pushpa Devi Bhagat (Dead) through L.R.
Sadhna Rai (Smt.) v. Rajinder Singh and others, [2006]
[2024] 2 S.C.R. 937
Basavaraj v. Indira and Others
Suppl. 3 SCR 370 : (2006) 5 SCC 566; M. Revanna v.
Anjanamma (Dead) by legal representatives and others,
(2019) 4 SCC 332 – referred to.
List of Acts
Code of Civil Procedure, 1908.
List of Keywords
Application for amendment; Due diligence; Commencement of trial;
Suit for partition and separate possession; Compromise decree;
Oversight and by mistake; Delay; Consent decree.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2886 of 2012
From the Judgment and Order dated 18.08.2010 of the High Court
of Karnataka at Bangalore in WP No. 82086 of 2010
Appearances for Parties
Nishanth Patil, Ayush P. Shah, Vignesh Adithya S., Ankolekar
Gurudatta, Advs. for the Appellant.
Ashok Kumar Gupta II, Shankar Divate, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Rajesh Bindal, J.
1. Vide impugned order1 passed by the High Court2, an application filed
by respondents No. 1 and 2/plaintiffs for amendment of the plaint
was allowed subject to costs of ₹2,000/-.
2. Briefly, the facts available on record are that respondents No. 1 and
2 filed a suit3 for partition of the ancestral property belonging to their
grand father pleading that no actual partition of the property has ever
taken place. When the suit was at the fag end, an application was
filed by respondents No. 1 and 2 seeking amendment of the plaint.
1 Order dated 18.08.2010 passed in W.P. No. 82086 of 2010
2 High Court of Karnataka, Circuit Bench at Gulbarga
3 Original Suit No. 151 of 2005
938 [2024] 2 S.C.R.
Digital Supreme Court Reports
The amendment sought was to add prayer in the suit for a declaration
that an earlier compromise decree dated 14.10.2004 was null and
void. As prayer was not made earlier, the court fee required thereon
was also sought to be affixed. The ground on which the amendment
was sought was that due to oversight and mistake, the respondents
No. 1 and 2/plaintiffs were unable to seek the relief of declaration.
No prejudice as such would be caused to the defendants as limited
relief is for fair partition of the ancestral property. The Trial Court4
dismissed the application. However, when the order5 was challenged
before the High Court, the same was set aside and the amendment
prayed for by the plaintiffs was allowed subject to payment of costs.
3. Learned counsel for the appellant submitted that in the case in hand,
there was a family partition in Original Suit No. 401 of 2003 filed
by Smt. Mahadevi and Smt. Sharnamma, wife and daughter-in-law
respectively of defendant No.1/Shivasharnappa, impleading the
plaintiffs and the defendants as party. A compromise decree dated
14.10.2004 was passed by the Lok Adalat, District Legal Services
Authority, Gulbarga. Thereafter, respondents No. 1 and 2 filed a fresh
suit in 2005 seeking partition of the ancestral property. Though in
the suit pleading was there with reference to the earlier compromise
decree, however for the reasons best known to the plaintiffs, no
challenge was made to the same. As a result of the order passed
by the High Court, the nature of the suit was changed from partition
to declaration, which is impermissible.
3.1 Further in terms of proviso to Order VI Rule 17 CPC, no
amendment could be allowed after commencement of the trial.
In the case in hand, the suit was at the fag end, as fixed for
arguments.
3.2 It was further submitted that the compromise decree was passed
on 14.10.2004. In terms of the provisions of Order XXIII Rule
3 CPC, the same could be challenged only before the same
Court and not before any other Court.
3.3 He further contended that there was a specific stand taken
by the appellant/defendant No. 2 in the written statement that
4 First Additional Civil Judge (Senior Division) at Gulbarga
5 Order dated 31.05.2010
[2024] 2 S.C.R. 939
Basavaraj v. Indira and Others
there being a compromise decree in existence, no relief may be
admissible to respondents No. 1 and 2, unless that decree is
challenged. The written statement was filed in August 2005, still
no steps taken by the respondents No. 1 and 2 in that direction.
Part of the suit property having been sold, an amendment was
carried out in the plaint in July 2006 to implead the subsequent
purchaser. Even at that stage, this relief was not sought.
3.4 It was further contended that the relief of declaration of
compromise decree being null and void prayed for by way of
amendment otherwise also was time barred as the compromise
decree was passed on 14.10.2004. The application for
amendment was filed on 08.02.2010. Even the court fee was
sought to be affixed at the time of filing of application for
amendment.
3.5 The application filed by respondents No. 1 and 2 did not meet
the pre-conditions laid down in Order VI Rule 17 CPC for
permitting respondents No. 1 and 2 to amend the pleadings
at the fag end of the trial. No due diligence was pleaded. All
what was stated was that there was oversight on the part of
respondents No. 1 and 2/plaintiffs.
3.6 Referring to the parties who were there in the compromise
decree, it was argued that some of them are not parties in
the suit in question, hence otherwise also challenge to the
compromise decree may not be maintainable.
3.7 In support of the arguments, reliance was placed upon the
judgments of this Court in Revajeetu Builders and Developers
v. Narayanaswamy and sons and others6 and Vidyabai and
others v. Padmalatha and another7
4. In response, learned counsel for respondents No. 1 and 2 submitted
that it was merely an oversight mistake which occurred at the time of
filing of the suit and at the subsequent stage for which the amendment
was prayed for by respondents No. 1 and 2. It is not a case where
the pleadings to that effect are not available on record. Respondents
No. 1 and 2 had fairly pleaded about the earlier compromise decree.
6 [2009] 15 SCR 103 : (2009) 10 SCC 84
7 [2008] 17 SCR 505 : (2009) 2 SCC 409
940 [2024] 2 S.C.R.
Digital Supreme Court Reports
Inadvertently, the prayer for declaration thereof as null and void
could not be made. The court fee also could not be deposited. No
fresh evidence is to be led. The case is at the arguments stage.
The same can be argued with mere re-framing of the issues. It will
avoid multiplicity of litigation and ultimately complete justice will be
done amongst the parties, who are merely praying for partition of
the ancestral property. The other side can be compensated with
costs, as was even done by the High Court. No prejudice as such
will be caused to the appellant. Substantial justice will be done
to the parties. In support of the arguments, reliance was placed
upon a judgment of this Court in Dondapati Narayana Reddy v.
Duggireddy Venkatanarayana Reddy and others8 and Estralla
Rubber v. Dass Estate (P) Ltd.9
5. Heard learned counsel for the parties and perused the relevant
referred record.
6. It is a case in which the appellant has been forced into avoidable
unnecessary litigation to rush to this Court. The suit was filed by
respondents No. 1 and 2 in 2005 seeking partition of the ancestral
property. It was specifically pleaded in the suit that there was a
compromise decree between the parties. However, as may be
the advice to respondents No. 1 and 2, despite there being a
compromise decree existing between the parties, no prayer was
made in the suit with reference thereto, if any grievance was there.
It remained simpliciter a suit for partition. A specific stand was taken
by the appellant in the written statement to the effect that the suit is
not maintainable unless cancellation of the compromise decree is
prayed for as the same would operate as res-judicata. The written
statement was filed in August 2005. Despite the specific pleading of
the appellant, the respondents No. 1 and 2 did not take any steps.
6.1 During the pendency of the suit, an amendment was carried
out by respondents No. 1 and 2 to implead respondent No. 4
in the suit who was the purchaser of a part of the suit property.
The same was allowed on 01.07.2006. Thereafter, trial of the
suit continued. When it reached at the stage of arguments in
February 2010 an application was filed by respondents No. 1 and
8 (2001) 8 SCC 115
9 [2001] Suppl. 3 SCR 68 : (2001) 8 SCC 97
[2024] 2 S.C.R. 941
Basavaraj v. Indira and Others
2 seeking amendment of the plaint. The reasons assigned to file
the belated application seeking amendment of the plaint were
that due to oversight and by mistake, the respondents No.1 and
2 failed to seek relief of declaration of the compromise decree
being null and void and were unable to deposit the court fee.
7. The law with reference to challenge to a compromise decree is well
settled. It was opined in Pushpa Devi Bhagat (Dead) through L.R.
Sadhna Rai (Smt.) v. Rajinder Singh and others10 that (i) appeal is
not maintainable against a consent decree; (ii) no separate suit can
be filed; (iii) consent decree operates as an estoppel and binding
unless it is set aside by the court by an order on an application under
the proviso to Order XXIII Rule 3 C.P.C.; and (iv) the only remedy
available to a party to a consent decree is to approach the Court
which recorded the compromise as it was opined to be nothing else
but a contract between the parties superimposed with the seal of
approval of the Court. Relevant part of paragraph No. 17 thereof is
extracted below:
"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) 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 3A.
(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 of Order 23.
10 [2006] Suppl. 3 SCR 370 : (2006) 5 SCC 566
942 [2024] 2 S.C.R.
Digital Supreme Court Reports
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…”
8. Proviso to Order VI Rule 17 CPC provides that no application for
amendment shall be allowed after the trial has commenced, unless
the Court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement
of trial. In the case in hand, this is not even the pleaded case of
respondents No. 1 and 2 before the Trial Court in the application
for amendment that due diligence was there at the time of filing of
the suit in not seeking relief prayed for by way of amendment. All
what was pleaded was 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.
8.1 The relevant paragraphs of the application seeking amendment
of the plaint are reproduced hereunder:
"2. That, due to over sight and by mistake the Plaintiff
was unable to sought relief declaration of decree as
null and void and unable to pay required court fee
some unavoidable circumstances and the proposed
amendment is very essential for deciding the matter
in dispute.
3. xxx
4. That, if the proposed amendment is allowed no
prejudice will be cause to the other side, on the
other hand if it is not allowed then the deponent will
be put to great loss and will also leads multiplicity of
litigation’s. Hence it is just and proper to allow the
proposed amendment to meet the ends of justice.”(sic)
[2024] 2 S.C.R. 943
Basavaraj v. Indira and Others
9. This Court in M. Revanna v. Anjanamma (Dead) by legal
representatives and others 11 opined that an application for
amendment may be rejected if it seeks to introduce totally different,
new and inconsistent case or changes the fundamental character
of the suit. Order VI Rule 17 C.P.C. prevents an application for
amendment after the trial has commenced unless the Court comes
to the conclusion that despite due diligence the party could not have
raised the issue. The burden is on the party seeking amendment
after commencement of trial to show that in spite of due diligence
such amendment could not be sought earlier. It is not a matter of
right. Paragraph No. 7 thereof is extracted below:
"7. Leave to amend may be refused if it introduces
a totally different, new and inconsistent case, or
challenges the fundamental character of the suit. The
proviso to Order 6 Rule 17 CPC virtually prevents
an application for amendment of pleadings from
being allowed after the trial has commenced, unless
the court comes to the conclusion that in spite of
due diligence, the party could not have raised the
matter before the commencement of the trial. The
proviso, to an extent, curtails absolute discretion
to allow amendment at any stage. Therefore, the
burden is on the person who seeks an amendment
after commencement of the trial to show that in
spite of due diligence, such an amendment could
not have been sought earlier. There cannot be any
dispute that an amendment cannot be claimed as a
matter of right, and under all circumstances. Though
normally amendments are allowed in the pleadings
to avoid multiplicity of litigation, the court needs to
take into consideration whether the application for
amendment is bona fide or mala fide and whether
the amendment causes such prejudice to the other
side which cannot be compensated adequately in
terms of money.”
(emphasis supplied)
11 (2019) 4 SCC 332
944 [2024] 2 S.C.R.
Digital Supreme Court Reports
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.
11. This Court in Revajeetu’s case (supra) enumerated the factors
to be taken into consideration by the court while dealing with an
application for amendment. One of the important factor is as to
whether the amendment would cause prejudice to the other side or
it fundamentally changes the nature and character of the case or
a fresh suit on the amended claim would be barred on the date of
filing the application.
12. If the amendment is allowed in the case in hand, certainly prejudice
will be caused to the appellant. This is one of the important factors to
be seen at the time of consideration of any application for amendment
of pleadings. Any right accrued to the opposite party cannot be taken
away on account of delay in filing the application.
12.1 In the case in hand, the compromise decree was passed on
14.10.2004 in which the plaintiffs were party. The application
for amendment of the plaint was filed on 08.02.2010 i.e. 5
years and 03 months after passing of the compromise decree,
which is sought to be challenged by way of amendment. The
limitation for challenging any decree is three years (Reference
can be made to Article 59 in Part-IV of the Schedule attached
to the Limitation Act, 1963). A fresh suit to challenge the same
may not be maintainable. Meaning thereby, the relief sought
by way of amendment was time barred. As with the passage
of time, right had accrued in favour of the appellant with
reference to challenge to the compromise decree, the same
cannot be taken away. In case the amendment in the plaint
is allowed, this will certainly cause prejudice to the appellant.
What cannot be done directly, cannot be allowed to be done
indirectly.
13. Further, a perusal of the memo of parties in the suit in question and
in the compromise decree shows that the plaintiffs i.e. Sharnamma
@ Mahananda wife of Basvaraj and Mahadevi wife of Shivsharnappa
Nasi in Original Suit No. 401 of 2003 are not party to the present
litigation. Even if on any ground the amendment could be permitted,
still no relief could be claimed with reference to setting aside of the
[2024] 2 S.C.R. 945
Basavaraj v. Indira and Others
compromise decree as all the parties thereto were not before the
Court in the suit in question.
14. For the reasons mentioned above, the present appeal is allowed.
The impugned order passed by the High Court is set aside. The
application filed for amendment of the plaint is dismissed. The
appellant shall be entitled to cost of the proceedings, which are
assessed at ₹1,00,000/- to be paid jointly or severally by respondents
No. 1 and 2. The appellant shall be paid the amount of cost on the
next date of hearing before the Trial Court by way of demand draft.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal allowed.
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