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2008 DIGILAW 303 (MAD)

V. S. Subramaniam @ Senthil v. S. Punitha

2008-01-29

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- Heard the learned counsel appearing for the revision petitioner Mr.B.Rajendran. Under this revision the order passed by the learned I Additional Judge of the Family Court at Chennai in FCOP.No.228 of 2006 dated 011. 2007, a petition filed under Order XXIII Rule 3 CPC is challenged. The issue is between husband and wife. On the representation made by both sides, the matter was referred to Mediation and it seems that a settlement had been arrived at between the parties. When the matter was again referred to the Court by Mediation Centre, on 011. 2007 the revision petitioner / husband / petitioner in FCOP.No.228 of 2006 on the file of the I Additional Judge, Family Court at Chennai, filed an application under Order 23 Rule 3 CPC for recording the compromise. But before the Court the respondent/Wife had repudiated that she is not willing for compromise. Only under such circumstance, the learned I Additional Judge, Family Court at Chennai, had directed that the trial must go, and adjourned the matter for recording the cross-examination of P.W.1. 2.The learned Counsel Mr.B.Rajendran appearing for the revision petitioner relying on Rule 7(3) of the Tamil Nadu (Case Flow Management in Subordinate Courts) Rules, 2007, published in Tamil Nadu Government Gazette dated 211. 2007 would contend that once the dispute between the parties are settled before the mediation, it is the duty of the Court to pass judgment in terms of the settlement and that in violation of the above said Rule, the Court below has passed the impugned order directing the parties to proceed with the trial. But a careful reading of Rule 7(3) of the Tamil Nadu (Case Flow Management in Subordinate Courts) Rules, 2007, will go to show that the Court shall pass a judgment in terms of the settlement and in accordance with Order XXIII Rule 3 CPC, if the terms of settlement are lawful. But a careful reading of Rule 7(3) of the Tamil Nadu (Case Flow Management in Subordinate Courts) Rules, 2007, will go to show that the Court shall pass a judgment in terms of the settlement and in accordance with Order XXIII Rule 3 CPC, if the terms of settlement are lawful. The Rule 7(3) of the Tamil Nadu (Case Flow Management in Subordinate Courts) Rules, 2007, reads as follows:- "Rule 7(3):- When the dispute is referred for Mediation and the Mediator submits the terms of settlement entered into between the parties, which is reduced into writing in accordance with the Rules, the Court shall pass a judgment in terms of the settlement and in accordance with Order XXIII Rule 3 CPC, if the terms of settlement are lawful." Order XXIII Rule 3 CPC enumerates the rule to be followed in a compromise suit as follows:- "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 the 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 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule. Explanation:- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule. HIGH COURT AMENDMENT (MADRAS): In the proviso to Rule 3, for the words provided that that following shall be substituted, namely: "Provided that the subject matter of the agreement, compromise or satisfaction, in so far as it differs from the subject-matter of the suit, is within the territorial and pecuniary jurisdiction of the Court concerned." So under Order XXIII Rule 3 only if Court is satisfied that a lawful compromise or agreement has been entered into between the parties in Mediation, after recording the same, shall pass a decree in accordance with the said compromise or agreement. It is seen from the notes of adjudication which took place on 11. 2007 before the Court below that the respondent/wife was not amenable for recording the compromise, which had entered into between the parties before the Mediation. Only under such circumstance, the Court below thought it fit not to record the compromise, and directed the parties to proceed with the trial. Under such circumstance, I do not find any illegality or infirmity in the order passed by the learned I Additional Judge, Family Court at Chennai, in FCOP.No.228 of 2006 on 11. 2007, to warrant any interference from this Court. 3.At this juncture the learned counsel for the revision petitioner would draw the attention of this Court to Rule 35 of the Family Courts (Procedure) Rules, 1996, and would contend that the said rule may also be extracted in this order. Rule 35 of the Family Courts (Procedure) Rules, 1996 runs as follows:- "When the parties arrive at a settlement before the counsellor relating to the dispute and any part thereof, such settlement, shall be reduced to writing and shall be signed, by the parties and counter-signed by the counsellor. The Court shall pronounce a decree or order in terms thereof unless the Court considers the terms of the settlement unconscionable or unlawful." In this case also since the respondent, a party to the compromise, had repudiated the terms of the compromise before the Court on 011. 2007, the Court below has rightly thought it fit not to record the same under Order 23 Rule 3 CPC, has directed the parties to proceed with the trial. 2007, the Court below has rightly thought it fit not to record the same under Order 23 Rule 3 CPC, has directed the parties to proceed with the trial. 4.In fine, the civil revision petition is dismissed. No costs. Connected Miscellaneous Petition is closed.