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2014 DIGILAW 1421 (RAJ)

Madan Lal v. Narendra Kumar

2014-07-23

ARUN BHANSALI

body2014
JUDGMENT : - This appeal under Section 96 CPC is directed against the judgment and decree dated 22.2.2012 passed by the District Judge, Pratapgarh, whereby the suit filed by the respondent-No.1-plaintiff has been decreed in terms of the compromise and the compromise alongwith map (Ex.-6) has been made a part of the decree. The facts in brief may be noticed thus : the respondent No.1-plaintiff filed a suit for partition on 27.9.2001 seeking partition of a house situated at Dhamotar Darwaja, Pratapgarh having shops and room and claimed 1/7th share in the house. The plaintiff impleaded Nanu Ram, his father and four brothers as defendants. During the pendency of the suit Nanu Ram died and his three daughters were taken on record as legal representatives in view of the fact that other legal representatives were already on record of the suit. The suit was resisted by the defendants by filing written statement and it was claimed that the nature of the suit property was self acquired in the hands of Nanu ram besides other pleas. During the pendency of the suit, the plaintiff filed an application seeking amendment of plaint under Order VI, Rule 17 CPC by incorporating one more relief in the relief clause, which pertained to partition of the agriculture land. The application was allowed by the trial court, however, the order passed by the trial court granting amendment of the plaint was questioned before this Court by way of filing S.B. Civil Writ Petition No.7295/2005 and this Court by order dated 13.10.2009 allowed the writ petition and set-aside the order dated 25.10.2005. It appears thereafter a compromise dated 22.2.2012 was produced before the trial court on 22.2.2012 executed by the plaintiff Narendra Kumar, one of the defendants-Chandra Shekhar and by the counsel for the plaintiff and defendants. The compromise provided for recognising plaintiff's ownership of the agricultural land comprised in Khasara No.809, the plaintiff relinquished his share in the residential property situated at outside Dhamotar Gate and qua another property situated outside Dhamotar Gate, the plaintiff conceded the right of preemption in favour of the defendants qua his share. The trial court recorded the compromise on 22.2.2012 itself and thereafter on the same day passed a decree in terms of the compromise as noticed hereinbefore. The trial court recorded the compromise on 22.2.2012 itself and thereafter on the same day passed a decree in terms of the compromise as noticed hereinbefore. It is submitted by learned counsel for the appellants that the compromise was not signed by the parties and as the compromise pertains to a property i.e. agricultural land which was not the subject matter of the suit, the compromise cannot be said to be lawful and the trial court fell in error in decreeing the suit based on the compromise. It was further submitted that the agriculture land was sought to be made subject matter of the suit by way of filing the application under Order VI, Rule 17 CPC, which application was allowed by the trial court, but the order passed by the trial court was set-aside by this Court and therefore, the decree qua the said property could not have been passed by the trial court. It was prayed that as the decree passed by the trial court is not based on lawful agreement or compromise, the conditions of Order XXIII, Rule 3 CPC are not satisfied and therefore, the same deserves to be set-aside. The learned counsel for the respondent supported the impugned decree. It was submitted that the decree was passed by the trial court based on a compromise arrived at between the parties; the compromise was duly signed by the counsel representing the defendants and from a plain reading of Order XXIII, Rule 3 CPC even a property which is not subject matter of the suit can be made subject matter of the agreement and compromise. It was submitted that in view of the provisions of Section 96(3) CPC, the appeal was not maintainable. I have considered the rival submissions. So far as the objection raised by learned counsel for the respondent regarding maintainability of the present appeal is concerned, sub-section (3) of Section 96 CPC provides that no appeal shall lie from a decree passed by the Court with the consent of parties. However, sub-rule (2) of Rule 1A of Order XLIII CPC reads as under:- “Order XLIII Rule 1A. Right to challenge non-appealable orders in appeal against decrees.- (1) ..... ...... ...... ...... ...... ...... ...... However, sub-rule (2) of Rule 1A of Order XLIII CPC reads as under:- “Order XLIII Rule 1A. Right to challenge non-appealable orders in appeal against decrees.- (1) ..... ...... ...... ...... ...... ...... ...... (2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.” The provisions of Section 96(3) CPC and Order XLIII, Rule 1A (2) CPC operates in different fields. While a decree passed with the consent of the parties is not appealable, when a decree is passed in a suit after recording a compromise, it is open for the party to contest the decree on the ground that the compromise should not have been recorded and as in the present case the plea raised by the appellants is that the compromise was not lawful, it cannot be said that the appeal is not maintainable. Coming to the merits of the submissions made by learned counsel for the appellants, it would be appropriate to reproduce provision of Order XXIII, Rule 3 CPC, which reads as under:- “Order XXIII Rule 3. Coming to the merits of the submissions made by learned counsel for the appellants, it would be appropriate to reproduce provision of Order XXIII, Rule 3 CPC, which reads as under:- “Order XXIII Rule 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 [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.]” From a bare reading of the above provision, it is ex-facie clear that where a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance there-with, so far as it relates to the parties to the suit whether or not the subject matter of the agreement or compromise is the same as the subject matter of the suit. The requirement of the above provisions are that : (a) the agreement or compromise should be lawful; (b) the same should be in writing and signed by the parties; (c) court shall order such agreement or compromise to be recorded; (d) pass a decree in accordance therewith; (e) it must relate to the parties to the suit; and (f) it is not necessary that the subject matter of the agreement or compromise is the same as the subject matter of the suit. The requirement of the Rule, which are sought to be questioned by learned counsel for the appellants pertains to whether the agreement / compromise signed by the counsel for the parties can be said to be a compromise signed by the parties and whether a property which was not subject matter of the suit can form part of a compromise. The issue as to whether a compromise signed by learned counsel for the parties can be termed as a compromise signed by the party is no more res integra. The Hon'ble Supreme Court in Byram Pestonji Gariwala v. Union Bank of India and others : AIR 1991 SC 2234 , while considering the above aspect held as under:- “37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wife and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority or integrity is ever doubted. This essential precaution will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession. 38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject-matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by itself duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise. 39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise. 39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. IF a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognize such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. 40. Accordingly, we are of the view that the words 'in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of O.III, R. 1, C.P.C. : “any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf : Provided that any such appearance shall, if the Court so directs, be made by the party in person. (Emphasis supplied)” The view in the case of Byram Pestonji Gariwala (supra) has been reiterated by the Hon'ble Supreme Court in the case of Jineshwardas v. Jagrani : AIR 2003 SC 4596 and Pushpa Devi Bhagat v. Rajinder Singh & Ors. : AIR 2006 SC 2628 . In the present case, a perusal of the record of the trial court reveals that the appellants had duly executed vakalatnama in favour of Mr. P.M. Jain, who has signed the compromise alongwith one of the defendants-Chandra Shekhar. : AIR 2006 SC 2628 . In the present case, a perusal of the record of the trial court reveals that the appellants had duly executed vakalatnama in favour of Mr. P.M. Jain, who has signed the compromise alongwith one of the defendants-Chandra Shekhar. Besides the above, the most outstanding feature of the present case is that the appellants have nowhere in the memo of appeal even whispered that the act of the counsel who signed the compromise was not authorised by them and / or signing of the compromise and presenting the same before the learned trial court on their behalf by the counsel was unauthorised. In view of the above, there is no substance at all in the plea raised by learned counsel for the appellants regarding the compromise being unlawful as it was not signed by the parties but was signed by learned counsel for the parties. So far as the submission made by learned counsel for the appellants regarding inclusion of the property in the compromise which was not subject matter of the suit is concerned, as already noticed hereinbefore, such a situation is clearly contemplated by the provisions of Order XXIII, Rule 3 CPC and the same, therefore, cannot give rise to any valid submission. The further submission that as the amendment including the agriculture land, which was permitted by the trial court came to be set aside by this Court and therefore, the same could not form part of the compromise, is also wholly without any substance. The net result of setting aside of the order allowing amendment was that the agriculture land was not subject matter of the suit and nothing more. The setting of order by this Court cannot put plaintiff to a worse position. As a property which is not the subject matter of a suit can form part of the compromise, merely because an amendment granted by the trial court came to be set-aside by this Court cannot alter the position so as to render it ineligible to be a part of the subject matter of a compromise. In view of the above discussion, there is no substance in this appeal and the same is, therefore, dismissed.