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2022 DIGILAW 1742 (RAJ)

Manoj v. Madhavlal Swarnkar

2022-05-24

RAMESHWAR VYAS

body2022
JUDGMENT Rameshwar Vyas, J. - The instant civil revision petition under Section 115 of the Code of Civil Procedure, 1908 is directed against the Order dated 25.04.2022 passed by the Additional Senior Civil Judge No. 2, Bhilwara in Civil Original Case No. 25/2016 titled as "Madhavlal v. Manoj @ Manohar", whereby the prayer of the defendant-petitioner for passing the decree under the provisions of Order XXIII, Rule 3 of C.P.C. on the basis of an agreement, has been rejected. 2. The brief facts of the case are that plaintiff (respondent herein) filed a civil suit against defendant (petitioner herein) for possession of the house. As per plaintiff, house in dispute was given to the defendant for three months for residence purpose in the month of January, 2013. The defendant in his written statement averred that plaintiff agreed to sell house in dispute to defendant for a consideration of Rs. 1,50,000/- and after receiving the amount, he handed over possession of the said house to the defendant. He also filed counter suit for specific performance of the contract. The trial court after framing issues, posted the matter for plaintiff's evidence. On 22.02.2022, defendant has filed an application under Order XXIII, Rule 3 of C.P.C. to the effect that on 11.01.2022, both the parties entered into agreement in the presence of Chhotulal and Satyanarayan, whereby defendant agreed to pay further amount of Rs. 7,70,000/- to plaintiff and thereafter, plaintiff was required to execute sale-deed in his favour. As per averments made in the application, defendant paid a sum of Rs. 40,000/- to plaintiff for purchase of stamps. He was ready to pay Rs. 7,70,000/- to plaintiff, however, plaintiff demanded additional money. In the circumstances, defendant has prayed for passing of the decree in terms of the agreement arrived at between the parties out of the Court. The trial court after hearing both the parties, has disallowed the above prayer vide Order dated 25.04.2022. The trial court was of the opinion that agreement was required to be in writing and signed by the parties in accordance with law. 3. Heard learned counsel for the parties and perused the material available on record as also order impugned passed by the trial court. 4. The trial court was of the opinion that agreement was required to be in writing and signed by the parties in accordance with law. 3. Heard learned counsel for the parties and perused the material available on record as also order impugned passed by the trial court. 4. Learned counsel for the petitioner submits that requirement of signing of the agreement does not exist under the provisions of Order XXIII, Rule 3 of C.P.C. It is only with regard to the compromise. He further submits that the trial court was required to enquire about the agreement alleged to be made orally between the parties. 5. Learned counsel for the respondent submits that no such agreement either in writing or oral was ever executed between the parties. He further submits that defendant has illegally possessed over the disputed house. The trial court after appreciating entire material available on record has rightly passed the order impugned, which does not warrant any interference. 6. Order XXIII, Rule 3 of C.P.C., which deals with 'Compromise of Suit' read as under:- "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 ....." 7. On plain reading of the above provisions, it is evident that lawful agreement or compromise both are required to be in writing and signed by the parties. The word 'compromise' cannot be assigned any different meaning from the meaning to word 'lawful agreement' for the purpose of passing a decree under this provision. The interpretation suggested by learned counsel for the petitioner, if accepted, will result in absurdity. This Court is in full agreement with the findings arrived at by the trial court that in absence of written agreement, the Court cannot pass decree under the provisions of Order XXIII, Rule 3 of C.P.C. 8. In view of the above discussion, this Court finds no merit in the present revision petition and same is hereby dismissed.