Jayandra Prasad Sinha v. Nand Kishore Jha — 1985 DIGILAW 42 (PAT)

Judgment 1. This appeal by the plaintiff arises against a judgment of reversal. The suit was for realisation of hunda rent for the years 1334 and 1375 Fs. on the basis of Kabuliat dated 11-5-1949 with interest pendente lite and future. The plaintiff had purchased the mortgagees interest from the heirs of one Ramdeo Prasad Singh, who had taken a usufructuary mortgage of 5 Bighas of land comprised in survey plots Nos. 503, 529 and 545 of village Jahangirpur, P. S. Sheohar in the district of Sitamarhi from Nand Kishore Jha and Dinesh Jha (Defendants-Respondents Nos. 1 and 4) on 11-5-1949 for Rs. 10,000/-. On the same date, i.e., 11-5-1949, the mortgagors (Nand Kishore Jha and Dinesh Jha) executed a Kabuliat in favour of the mortgagee agreeing to pay manhunda rent at the rate of 70 maunds, i.e., 43 maunds 30 seers of paddy and 26 maunds 10 seers of Khesari. 2. The heirs of Ramdeo Prasad Singh have been impleaded as pro forma defendants second-set/respondents second party in the present appeal. 3. The plaintiff-appellant obtained a decree by the trial Court and decree was to the tune of Rs. 2,945.50P. with interest pendente lite and future interest at the rate of 6 per cent per annum. 4. The defendants-respondents first-set (the mortgagors) preferred an appeal against the trial Court decree. The Court of appeal below allowed the defendants/respondents 1st sets appeal and dismissed the suit. 5. Hence the present appeal by the plaintiff. This appeal was heard on more than one date. By order 21-1-85, the learned counsel for the parties stated/reiterated that there was all the chances of the parties coming to terms. Whereupon, the Court ordered that if compromise was entered into the learned counsel for the parties will file a regular application duly sworn on affidavit. The matter was adjourned. Thereafter the case was again heard in part. The learned counsel for the contesting parties (the appellant and the respondent first party) state that for one reason or the other the clients have not been able to come to Patna and as the terms of settlement are already recorded by the respective counsel for the contesting parties, the appeal may be disposed of in the terms of settlement as recorded and duly signed by the respective counsel for the contesting parties. In other words, the learned counsel for the parties jointly contended that a regular application for compromise, in the present case, is not needed as the case did not fall within the first part of O.23, R.3 (as amended) of the Code of Civil Procedure, 1976 (hereinafter referred to as the Code). In that view of the matter, it became necessary for me to examine the provisions of O.23. R.3 of the Code. 6. It is pertinent to quote here Order 23 R.3 of the Code (as amended) : "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. (Explanation : An agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule)". The words underlined were inserted by amendment in 1976. The Proviso and the Explanation were also added by amendment in 1976. In this case, we are not concerned either with the Proviso or the Explanation. 7. The learned counsel for the respective parties have jointly contended that though the first part of R.3 of O.23 of the Code makes it obligatory to file a compromise petition which should be in writing and signed by the parties, it is not so if the second part of the said rule is applicable under which a satisfaction merely is to be recorded. The learned counsel for the respective parties have contended that in the present case the contesting defendants have agreed to satisfy the plaintiff in respect of the subject-matter of the suit and hence the present case falls in the second part of R.3 of O.23 of the Code and, therefore, a regular compromise petition in writing and signed by the parties is not necessary. They have contended that the first part of R.3 of O.23 of the Code is disjuncted by the word "or" and, according to the submission of the learned counsel for the contesting parties their case, on the facts of the present case, falls within "..........or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such ............. satisfaction to be recorded, and shall pass a decree in accordance therewith........". 8. In my opinion, the joint submission advanced by the learned counsel for the contesting parties has enough force. 9. In my opinion, a careful reading of R.3 of O.23 of the Code discloses two distinct kinds of classes of compromise in suits. The first part of the rule visualises a lawful agreement or compromise arrived at out of the Court by the parties, by the amendment of 1976. It is this kind of agreement or compromise which requires to be in writing and signed by the parties. In my opinion, in the agreements/compromises outside the Court, the words "in writing and signed by the parties" do apply. The words "in writing and signed by the parties" apply only to lawful agreements and compromises arrived at by the parties out of the Court. It was to correct the abuse of setting up of an oral agreement or compromise out side the Court and the attempts to prolong the matters by leading evidence thereof that the legislature mandated that such agreements or compromises must not only be written but equally that these must be signed by the parties. In my opinion, on a true construction of R.3 of O.23 of the Code, it was this object with which the legislature amended R.3. Prior to 1976, R.3 of O.23 of the Code stood as below : "R.3. In my opinion, on a true construction of R.3 of O.23 of the Code, it was this object with which the legislature amended R.3. Prior to 1976, R.3 of O.23 of the Code stood as below : "R.3. Compromise of suit:- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." 10 This being the true import of R.3 of O.23 of the Code (as amended). The second part of R.3 of O.23 embodies within itself all such other cases where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit and such cases, in themselves, make a distinct class by itself. The legislature has designedly used the word "or" in R.3. Distinct terminology has been used separating lawful agreements or compromises from the satisfaction of the plaintiff by the defendant in respect of the whole or any part of the subject-matter of the suit. The word "satisfaction", in my opinion, has been used in contradistinction to the word "adjustment" by agreement or compromise by the parties. Hence, in my opinion, the requirement of "in writing and signed by the parties" does not apply to the altogether different situation where the defendant satisfies the plaintiff in the alternative under the second part of R.3, of O.23 of the Code. 11. The present case has been heard for a few days and the learned counsel for the respective contesting parties have agreed to certain terms and reading the terms agreed upon, it is absolutely obvious that, in the present case, the contesting defendants/ respondents first party have agreed to satisfy the plaintiff in respect of not only the subject matter but have agreed to satisfy the plaintiff in respect of the entire matter connected with the usufructuary mortgage and the Kabuliat dated 11-5-1949. The defendants/respondents first party have agreed to pay a sum of Rs. The defendants/respondents first party have agreed to pay a sum of Rs. 8,000.00 to the plaintiff-appellant in full satisfaction of the consideration money of the mortgage dated 11-5-1949 and the plaintiff-appellant has agreed that on such payment being made, the appellant gives up all claim to the rent, mesne profits or usufruct past, pending or likely to accrue to the plaintiff-appellant in future from the mortgage security and the learned counsel for the respective contesting parties have further agreed that on such payment being made the entire mortgage dated 11-5-49 shall stand redeemed. Thus, I hold that the joint submissions of the learned counsel for the respective contesting parties has all the forces and the present case falls squarely within the ambit of the second part pertaining to the satisfaction of the plaintiff-appellant by the defendants/ respondents first party with regard to not only the subject matter of the suit but also that no dispute, whatsoever, remains pending in connection with the aforesaid usufructuary mortgage and the Kabuliat dated 11-5-1949. Hence I hold that, on the facts of the present case, it did not require a written document to be signed by the parties themselves before it could be acted upon. 12. In the present case, in the category of defendants/respondents-first party, there are a few minors, who are respondents Nos. 6 to 11 and they have been placed under the guardianship of the Deputy Registrar guardian. The Deputy Registrar guardian, appearing for these minor respondents (respondents 6 to 11) sought my permission to sign the agreed terms (Memorandum) as it was for the benefit of the minors as well. I am satisfied, on the facts of the present case and on the terms agreed upon, that it is for the benefit of the aforesaid minors as well. The learned counsel for the respective contesting parties, thus, prayed for a consent order being passed by this Court on the terms as stated in the agreed terms (Memorandum) filed by them in Court on 1-2-1985 duly signed by the learned counsel for the plaintiff-appellant and the learned counsel for the respondents 1 and 4. The Deputy Registrar guardian appearing for minor respondents Nos. 6 to 11 has also signed the agreed terms on 4-2-85 with the permission of the Court. 13. The Deputy Registrar guardian appearing for minor respondents Nos. 6 to 11 has also signed the agreed terms on 4-2-85 with the permission of the Court. 13. The learned counsel for the respective contesting parties thus, having filed the agreed terms (Memorandum) duly signed by them have prayed for a consent order being passed in the following terms : (i) Defendants-Respondents 1st set agree to pay a sum of Rs. 8,000.00 to the appellant in full satisfaction of the consideration money of the mortgage dated 11-5-1949. On such payment being made the appellant hereby gives up all claim to the rent, mesne profits or usufruct past, pending or likely to accrue to the appellant in future from the mortgage security. (ii) On such payment being made the mortgage dated 11-5-1949 shall stand redeemed, (iii) The defendant-respondents 1st set shall pay the aforesaid amount of Rs. 8,000/-(Rupees Eight thousand) only in two equal instalments, the first instalment to be made by the 1st April, 1985 and the second and last instalment, by the 31st May, 1985. The amount shall be paid to Mr. Jawahardhari Singh, advocate for the appellant, who shall grant receipt which shall be in full satisfaction of the consent order passed by this Hon ble Court. (iv) The Defendant-Respondent shall file an affidavit with photostat copies of the receipts stating that the full amount of Rs. 8,000.00 has been paid and the same shall form part of the records of this appeal. (v) On failure to pay any of the two installments the decree of the trial court shall stand restored and the second appeal allowed. (vi) The appeal shall stand dismissed against Defendants-Respondents 2nd set without cost. (vii) The parties shall bear their own cost throughout. 14. Let a consent decree be prepared in the aforesaid terms. In token of the consent decree the learned counsel for the respective contesting parties have already signed the agreed terms (Memorandum) as already stated above. 15. The appeal, as per the agreed terms, shall stand dismissed against the defendants/respondents second party without cost. 16. This appeal is, accordingly, disposed of in terms of the consent order, as quoted above, and the respective contesting parties, i.e., the plaintiff-appellant and the defendants/respondents first party shall bear their own cost throughout.