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2012 DIGILAW 507 (KER)

Johny, S/o. Pothan v. K. T. Joseph, S/o. Thomas

2012-06-08

V.CHITAMBARESH

body2012
ORDER : V. CHITAMBARESH, J. 1. The short question that arises for consideration in this Civil Revision Petition is as to whether the compromise entered into by the parties is lawful in terms of 3, Rule 3 of the Code of Civil Procedure and its Explanation. The suit is one for a decree of mandatory injunction directing the defendants to publish the photograph of the holy communion of the son of the plaintiff in the souvenir published by the defendants. A decree of prohibitory injunction was also sought restraining the defendants from releasing the Souvenir except with the photograph of the son of the plaintiff. 2. The first defendant is a member of the Parish, the second defendant is the Convenor of the Magazine Committee and the third defendant was the Vicar of the Church. The suit was compromised by which the defendants agreed to keep the photograph of the holy communion of the son of the plaintiff in the church gallery. The compromise was entered into on 11-7-2008 and a decree was passed in the suit in accordance therewith. The third defendant had ceased to be a Vicar from 15-5-2008 and the church was represented by none on the date of the compromise. The bye laws of the church in fact reflects that it can be represented only by the Vicar and the trustees jointly and not even by the present Vicar alone. 3. Defendants 2 and 3 later moved for recalling the compromise since a fresh suit is obviously barred under 23, Rule 3-A of the Code of Civil Procedure. They contended that the church was not a party to the suit and that the compromise imposed a liability to place a photo on the church gallery. Defendant Nos. 2 and 3 pointed out that the consideration for the agreement is not lawful since it involves injury to the property of another. Reliance was placed on Section 23 of the Indian Contract Act, 1872 read with the Explanation to 23, Rule 3 of the Code of Civil Procedure. 4. True it is that the compromise has not been signed by the parties to the suit. But it would suffice if the counsel signs the compromise as per the law now settled. The further question is as to whether any one of the defendants can undertake some matter to be done in the church. 4. True it is that the compromise has not been signed by the parties to the suit. But it would suffice if the counsel signs the compromise as per the law now settled. The further question is as to whether any one of the defendants can undertake some matter to be done in the church. Explanation to 23, Rule 3 clarifies that an agreement which is void under the Indian Contract Act shall not be deemed to be lawful. Section 23 of the Indian Contract Act says that the agreement is not lawful if it involves injury to the property of another. 5. The keeping of the photograph of the son of the plaintiff is in the property of Church over which the defendants have no custody or control. The church is not represented in the proceedings and the third defendant had ceased to be a Vicar as on the date of compromise. The trustees are also not parties to the suit or the compromise and the agreement is obviously unlawful under Section 23 of the Indian Contract Act. I am fortified in this view by the judgment of the division bench of this Court in Narayanan v. Rajamany ( 1995 (2) KLT 351 ). 6. The compromise under such circumstances is liable to be recalled. The decisions in Banwari Lal v. Smt. Chando Devi and another (AIR 1993 Supreme Court 1139) and Joy Francis and another v. Joseph Netto and others (ILR 2012 2 KER 272) are apposite. The court below erred in recording the compromise when the agreement is unlawful due to injury to the property of another over which the defendants have no custody or control. The parishners or the trustees may resent keeping the photograph of the son of the plaintiff along side the photographs of the holy and sacred in the church gallery. It goes without saying that the court below was bound to recall the compromise when the same was pointed out by the parties. 7. The order impugned rejecting the application to recall the compromise is set aside . I.A No.1817/2009 in O.S No. 17/2008 on the file of the Court of the Munsiff of Vaikom is allowed. The court below is directed to proceed with the suit and take the same to a logical conclusion. C.R.P No.89/2011 is allowed. No costs.