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2019 DIGILAW 342 (ORI)

State of Orissa v. Deepak Kumar Das

2019-04-22

K.R.MOHAPATRA

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JUDGMENT : K.R. Mohapatra, J. This appeal has been filed by the State of Odisha and its functionaries assailing the judgment and decree dated 23.01.1999 and 30.04.1999 respectively passed by learned Civil Judge (Senior Division), Bhubaneswar in T.S. No.727 of 1998, whereby he decreed the suit recording compromise between the parties. 2. Initially the respondents herein had raised a question of maintainability of the appeal. However, this Court vide order dated 27.01.2004, held the appeal to be maintainable. Now, this appeal has come up for final hearing. 3. A short narration of fact, which is necessary for adjudication of this appeal, is as follows: 3.1 The State Government leased out a part of plot no.30 with an area measuring 60'x90' of Block-A in Nayapalli Mouza (now Jaydev Vihar) at Bhubaneswar (herein referred to as 'the suit land'). The suit land stood recorded in the name of General Administration Department (Drawing No.409). On an application, the suit land was leased out in favour of one Sri Gopal Chandra Das (defendant No.1/respondent No.2). Accordingly, lease deed was executed between the Government and defendant No.1 in the year, 1971 and possession was handed over to him. Subsequently, defendant No.1 filed an application for transfer of the suit land in favour of one of his sons, namely, Sri Ashok Kumar Das (defendant No.2/respondent No.3) by way of gift. Considering his application for transfer, the Government allowed the same and intimated the lessee-defendant No.1 to deposit a sum of Rs.92,976/- for transfer of the land in the name of defendant No.2 and also required a tripartite agreement to be executed between the Govt. of Orissa, defendant no.1 and defendant no.2 before the Sub-Registrar, Bhubaneswar to that effect. While the matter stood thus, another son of Sri Gopal Chandra Das (defendant No.1), the lessee, filed Title Suit No.727 of 1998 in the court of learned Civil Judge (Senior Division), Bhubaneswar for partition claiming 1/3rd share in the suit land impleading the lessee, namely, Sri Gopal Chandra Das as defendant No.1, Shri Ashok Kumar Das as defendant No.2, daughter of the lessee, namely, Smt. Minati Das as defendant No.3 and the appellants herein as defendant Nos.4 and 5. The suit for partition was filed on 23.12.1998. Subsequently, on 23.01.1999, a petition under Order 23 Rule 3 of CPC was filed for decreeing the suit on compromise. The suit for partition was filed on 23.12.1998. Subsequently, on 23.01.1999, a petition under Order 23 Rule 3 of CPC was filed for decreeing the suit on compromise. The compromise petition was signed by the plaintiff and defendant Nos.1 to 3. However, the Government Pleader had signed the compromise petition on behalf of defendant Nos.4 and 5. On the same day, the matter was taken up and learned Civil Judge (Senior Division), Bhubaneswar decreed the suit in terms of the compromise. Amongst other, it was agreed between the parties that the defendant No.2, namely, Sri Ashok Kumar Das is the rightful title holder of the suit land and in lieu thereof, plaintiff-defendant Nos.1 and 3 would get share from other lands of the 'Karta', namely, Sri Gopal Chandra Das (defendant No.1). It was also agreed upon between the parties that defendant No.4, namely, Director of Estate-cum-Joint Secretary,General Administration Department, Government of Odisha, would take necessary steps for correction of the ROR accordingly. On the same premises, the suit was decreed in terms of the compromise. Being aggrieved by the recording of the said decree the terms of compromise, this appeal has been filed. 4. Mr. Mohapatra, learned Additional Government Advocate vehemently submitted that the learned Civil Judge (Senior Division), Bhubaneswar has committed serious error of law in ignoring the fact that the defendant Nos.4 and 5 had not signed the petition for compromise. Defendant Nos.4 and 5 were also not present in the Court when the compromise was recorded. Although defendant nos. 4 and 5 were not present in person, learned Civil Judge (Senior Division), Bhubaneswar erroneously recorded a finding that both the parties were present and the petition for compromise was read over and explained to the parties. Since the defendant Nos.4 and 5 had not signed the petition for compromise, the decree passed in terms of compromise is not binding on them and only on that ground the decree is not sustainable in law. 5. Learned counsel for the respondents, on the other hand, contended that although defendant Nos.4 and 5 were not present in person and had not signed the petition for compromise, which was filed on 23.01.1999, the Government Pleader, who was the authorized representative, had signed the petition for compromise without any objection and as such, the decree of compromise is also binding on defendant Nos.4 and 5. The same cannot be also held to be illegal or invalid as the authorized representative of the appellants had signed the petition for compromise on their behalf. Since the appellants do not allege fraud or misrepresentation, they cannot plead for setting aside a compromise decree only on the ground that they had not signed the petition for compromise. It is also not the plea of the appellants that the Government Pleader was not the authorized to represent their case before the learned Civil Judge (Senior Division), Bhubaneswar. In support of his case, he relied upon a decision of the Hon'ble Supreme Court in the case of Byram Pestonji Gariwala-v-Union Bank of India and others, (1992) 1 SCC 31 and Hema Chandra Singh alias Prava Chandra Singh-v Jasaketa Singh and others,1992 74 CLT 235. Hence, he prayed for dismissal of the appeal. 6. Heard learned counsel for the parties and perused the case record. Admittedly, there is no allegation of fraud or misrepresentation in recording the compromise before learned Civil Judge (Senior Division), Bhubaneswar. It is also not the case of the appellants that the terms of compromise were not lawful. Thus the only question that arises for consideration is whether a petition for compromise signed by a legal practitioner for and on behalf of the parties, is valid and a compromise can be recorded on that basis? The issue is no more res integra. In the case of Byram Pestonji Gariwala (supra), the Hon'ble Supreme Court at paragraphs-38 and 39 held as follows: "38. Considering the traditionally recognized 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 perused to be disallowed the parties to enter into a compromise by counsel in their cause or by itself duly authorized 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. 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 authorized representative. If a powerof-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorization 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." 7. This Court in the case of Hema Chandra Singh alias Prava Chandra Singh (supra) relying upon the decision of the Hon'ble Supreme Court in the case of Byram Pestonji Gariwala (supra) held at paragraph-4 as follows: "4. So far as the first contention of Mr. Patra, learned counsel for the petitioner that the petitioner having not signed the memorandum for compromise which formed the basis for disposal of the appeal by order dated 8-3-1973 is concerned, it is necessary to quote the provisions of Order 23, Rule 2, C.P.C. "3. Compromise of suit: Where it is proved to the satisfaction of the Court that the 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 deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjustment." The words 'in writing and signed by the parties" were inserted by the C.P.C. (Amendment) Act, 1976. However, prior to such insertion with effect from 7.5.1954, by Orissa High Court Amendment, after the words 'where it is proved .by any lawful agreement or compromise and preceding the comma, the words "in writing and signed by the parties in token of their consent to such agreement or compromise" were added. Clause (i) of the Orissa Amendment to rule 3 of the Order 23 was deleted by Orissa Gazette Part IIIA, No.21-D/25-5-1984. In the instant case, the compromise memorandum was signed on 8-3-1973, that is prior to 1976 Amendment. However, the Orissa High Court Amendment referred to above contained almost identical words and held the field so far as the case at hand is concerned. After the amendment of 1976, a consent decree is executable in terms thereof, even if it comprehends matters falling outside the subject-matter of the suit, but concerning the parties. In the system of law and practice followed in India and other common law countries, the time-honoured role of lawyers in the conduct of cases and doing everything in the interest and benefits of the clients cannot be lost sight of. By insertion of the words "in writing and signed by the parties" it cannot be construed that the legislative intention was that the agreement or compromise should be signed by the parties in person, since the responsibility for compromise the suit, including matters failing outside its subject-matter, is to be borne by none but the parties themselves. It cannot be legislative intent to have fundamentally altered the position of counsel or a recognized agent. A look at the preparatory work such as the 54th Report of the Law Commission dated 6-2-1973 or the statement of Objects and Reasons does not indicate that such was the intention of the legislature. It cannot be legislative intent to have fundamentally altered the position of counsel or a recognized agent. A look at the preparatory work such as the 54th Report of the Law Commission dated 6-2-1973 or the statement of Objects and Reasons does not indicate that such was the intention of the legislature. There is no reason to assume that the legislature intended to curtail the implied authority of counsel, engaged in the trial of proceedings in Court, to compromise or agree on matters relating to the parties. Therefore, on a plain reading of Order 23, Rule 3, C.P.C., after amendment of C.P.C. in 1976, and prior to that, so far as the State of Orissa is concerned, in terms of Orissa High Court amendment of 1954, we are not persuaded to accept the submissions made on behalf of the petitioner that even though the counsel appearing for the petitioner in this Court had signed the memorandum of compromise, that was not sufficient compliance of Order 23, Rule 3, C.P.C. Our view has the authoritative seal of approval of the apex Court. (See Byram Pestonji Gariwala-v-Union Bank of India and others, (1991) AIR SC 2234." (emphasis supplied) 8. There can be no quarrel on the fact that a party can always act through his duly authorized representative/ agent. If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so there can be no controversy over the competency of a counsel, who, had accepted the brief/case of a litigant by executing Vakalatnama, can act on behalf of his client by signing the petition for compromise. Any controversy with regard to the competence of learned counsel to sign a petition for compromise on behalf of his client would be a travesty of law and will give rise to an argument, which would be inconsistent with the legislative object of attaining finality of the litigation. The Legislature cannot be presumed to have fundamentally altered the position of the counsel or a recognized agent as traditionally understood in the system of law in practice followed in India. It is the settled law that a compromise can only be challenged on the ground of fraud or misrepresentation and that it is not lawful. The allegation of fraud or misrepresentation are conspicuously absent in the present case. It is the settled law that a compromise can only be challenged on the ground of fraud or misrepresentation and that it is not lawful. The allegation of fraud or misrepresentation are conspicuously absent in the present case. Further, signing of the compromise petition by the Government Pleader on behalf of defendant Nos.4 and 5 cannot be held to be unlawful. Even though defendant Nos.4 and 5 had not signed the petition for compromise filed on 23.01.1999 before the learned Civil Judge (Senior Division), Bhubaneswar, their authorised representative, namely, the Government Pleader, who had accepted the brief on their behalf and was prosecuting the suit, was competent to sign the petition for compromise on their behalf. It is not the case of the appellants (defendant Nos.4 and 5) that they are prejudiced by the compromise in question recorded between the parties by learned Civil Judge (Senior Division), Bhubaneswar. Rather, it has helped in curtailing unnecessary time consuming procedure and saved precious judicial time of the Court. 9. Hence, I am not persuaded to accept the arguments and contentions raised by Mr. Mohapatra, learned Additional Government Advocate for the appellants. Accordingly, the appeal being devoid of merit stands dismissed. No cost.