While setting the record straight and not leaving even a scintilla of doubt to hover over the minds and thoughts of anyone, the Patna High Court has in a most learned, laudable, landmark and latest judgment titled Shanker Prasad vs Lakshmi Devi & Ors in Dr Shanker Prasad vs Smt Lakshmi Devi & Ors in Civil Revision No. 93 of 2017 that was pronounced as recently as on September 26, 2023 has made it indubitably clear that the remedy which is not directly available cannot be availed of indirectly by clever drafting. To put it differently, the Bench also sought to make it absolutely clear that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise is not maintainable. It must be noted that the Court was going through a civil revision application that had been filed against the order that had been passed by the Sub-Judge in the “Title Partition Suit” whereby the petition of the petitioner filed under Order VII Rule 11 and Section 11 of the CPC was rejected.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Sunil Dutta Mishra sets the ball in motion by first and foremost putting forth in para 2 that, “This Civil Revision application has been filed against order dated 25.01.2017 passed by learned Sub Judge-VI, Patna in Title Partition Suit No. 434 of 2013 whereby the learned court below has rejected the petition of the petitioner filed under Order VII Rule 11 and Section 11 of the Code of Civil Procedure ( in short “CPC”).”

To put things in perspective, the Bench envisages in para 3 that:
The brief facts of the case are that plaintiff/opposite party no. 1 filed Title Partition Suit No. 434 of 2013. In the said suit plaintiff no. 1 Most. Kamla Devi ( died on 09.01.2014) is mother and plaintiff no. 2 Smt. Laxmi Devi is sister of defendants. The defendant no. 1 Dr. Shankar Prasad had filed a suit for partition in regard to joint family properties vide T.S. No. 62 of 1992. It is claimed that defendant nos. 1 and 2 persuaded their mother, plaintiff no. 1 not to take due share since they will maintain her whole life with due respect and regard and also persuaded plaintiff no. 2 and defendant no. 3 (sisters) not to take any share by reiterating the same assurance which was given to the mother. A compromise petition was prepared and the property was mainly allowed to be partitioned between defendant nos. 1 and 2 and a decree of partition in terms of compromise was passed therein on 29.04.1995. The plaintiff no. 1 of this suit was given 1634 sq. ft. of land at Kumhrar and also right to realize rent from a shop at Baripath, Patna.”

As we see, the Bench discloses in para 4 that:
It is alleged that plaintiff no. 1 herein has never been maintained by her sons i.e. defendant nos. 1 and 2 nor she was allowed to ever collect rent from the shop at Baripath, Patna and plaintiff no. 2 alone had taken care of her including her medical expenses. Mother was forced to file Maintenance Case No. 96 (M) of 2010 against defendant nos. 1 and 2. She had to take loan for her survival and to repay the loan she had to sell the said 1634 sq. ft. of land.”

Be it noted, the Bench notes in para 16 that:
In Pushpa Devi Bhagat Vs. Rajinder Singh, (2006) 5 SCC 566 observed that no independent suit can be filed for setting aside a compromise decree on the ground that compromise was not lawful in view of the bar contained in Rule 3 A. It was further observed that 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 Order 23.”

It is of immense significance to note that the Bench while citing a recent, relevant and remarkable Apex Court ruling hastens to add in para 18 stating that:
In the judgment dated 09.02.2022, M/s. Sree Surya Developers and Promoters Vs. N. Sailesh Prasad and Ors. (Civil Appeal No. 439 of 2022) the Hon’ble Supreme Court in para 10.1 held as under:

“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.”

It is worth noting that the Bench while citing the relevant Apex Court judgment notes in para 24 that:
On the point of clever drafting and exercise of power under Order 7 Rule 11 CPC the Hon’ble Supreme Court in T. Arivandanam Vs. T.V. Satyapal & Another (1977) 4 SCC 467 it was observed that if on a meaningful- not formal reading of the plaint it is manifestly vexatious and meritless in the sense of not disclosing clear right to sue, the Court 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 searching under Order 10 CPC and it was further 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.”

For sake of clarity, the Bench then clarifies in para 25 that:
This Court in this proceeding is not required to enter into the merits of the validity of the compromise decree on the ground that the same has been obtained by fraud or is required to be compulsory registration and the only issue which is required to be considered by this Court is whether the fresh suit is maintainable or not.”

Most significantly, the Bench clearly propounds in para 26 that:
It is not in dispute that as such the plaintiff has already moved an application before the Court concerned under Order XXIII Rule 3 A CPC which passed the said decree for setting aside compromise decree and thus, plaintiff has already availed the proper remedy available in the law. The remedy which is not directly available cannot be availed indirectly by clever drafting. The filing of fresh suit which is substantially based on declaring compromise decree as null and void is an abuse of the process of law particularly when the proper remedy has already been availed.”

Most forthrightly, the Bench expounds in para 27 that:
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 partition of the suit property but, mere perusal of the plaint it appears that the suit is based on the pleading that previous decree in suit for partition is nullity and void and no right accrues to any party from the said decree. As discussed above, 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.”

Most commendably, the Bench mandates in para 28 that:
The prayer of partition of suit property is basically challenging the previous compromise decree. A mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise is not maintainable. The plaintiff knowing the same, had already filed Misc. Case challenging the compromise decree before the concerned Court.”

Most sagaciously and as a corollary, the Bench then directs in para 29 that:
In view of the aforesaid facts and circumstances and considering the submissions on behalf of the parties and the legal position, it is held that the suit is liable to be rejected under Order 7 Rule 11 (d) as not maintainable. The impugned order is set aside. The stay granted by this Court in this case is vacated. The plaint in Title Suit No. 434 of 2013 pending before Sub-Judge VI, Patna/Successor Court stands rejected.”

In addition, the Bench then holds in para 30 that:
The Civil Revision is, accordingly, allowed.”

Finally, the Bench concludes by holding in para 31 that:
Application (s), if any, stands disposed of.”

In sum, the sum and substance and so also the long and short of this notable judgment is that the Patna High Court has made it indubitably clear that:
The remedy which is not directly available cannot be availed indirectly by clever drafting.” The Court also made it crystal clear that the filing of fresh suit which is substantially based on declaring compromise decree as null and void is an abuse of the process of law particularly when the proper remedy has already been availed and so it has to be nipped in the bud. No denying it! So it needs no rocket scientist to wonder that the plaint was thus accordingly rejected!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh