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SUPREME COURT OF INDIA
Dr. T.K. THOMMEN AND R.M. SAHAI, JJ.
Byram Pestonji Gariwala, Appellant
Versus
Union Bank of India and others, Respondents.
Civil Appeal No.3698 of 1991 (arising out of SLP (C) No.1715 of 1991)
Decided on 20-9-1991.
Advocates appeared
Mr. Arun Jaitley, Sr. Advocate, Mr. R.F. Nariman, Mr. R. Karanjawala, Mrs. M. Karanjawala, Ms. Nandini Gore and Ms. Aditi Choudhary, Advocates with him, for Appellant; Mr. V.A. Bobde, Sr. Advocate, Mr. U.A. Rao and Mr. B. R. Agarwala, Advocates with him, for Respondents.
The Indian legal system is the product of history. It is rooted in our soil; nurtured and nourished by our culture, languages and traditions, fostered and sharpened by our genius and quest for social justice; reinforced by history and heritage: it is not a mere copy of the English common law; though inspired and strengthened, guided and enriched by concepts and precepts of justice, equity and good conscience which are indeed the hallmark of the common law. In the words of M.C. Setalvad :
.....the common law of England with its statutory modifications and doctrines of the English Courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub-continent inhabited by nearly four hundred million people. The law and jurisprudence of this vast community and its pattern of judicial administration are in many matters different from those of England in which they had their roots and from which they were nurtured. Yet they bear the unmistakable impress of their origin. The massive structure of Indian law and jurisprudence resembles the height, the symmetry and the grandeur of the common and statute law of England. In it one sees English law in the distant perspective of a new atmosphere and a strange clime#20;.
Speaking of the common law in the wider sense, the learned author continues:-
#19;.....But the English brought into India not only the mass of legal rules strictly known as the common law but also their traditions, outlook and techniques in establishing, maintaining and developing the judicial system. When, therefore, I speak of the common law in India I have in view comprehensively all that is of English origin in our system of law. In that wide meaning the expression will include not only what in England is known strictly as the common law but also its traditions, some of the principles underlying the English statute law, the equitable principles developed in England in order to mitigate the rigours of the common law and even the attitudes and methods pervading the British system of the administration of justice#20;.
(The Common Law in India, 1960 - The Hamlyn Lectures, Twelfth Series, pp. 1-4.)
After the attainment of independence and the adoption of the Constitution of India, judicial administration and the constitution of the Law Courts remained fundamentally unchanged, except in matters such as the abolition of appeals to the Privy Council, the Constitution of the Supreme Court of India as the Apex Court, the conferment of writ jurisdiction on all the High Courts, etc. The concept, structure and organisation of Courts, the substantive and procedural laws, the adversarial system of trial and other proceedings and the function of judges and lawyers remained basically unaltered and rooted in the common law traditions in contra-distinction to those prevailing in the civil law or other systems of law.
In our own systems of judicial administration, if strains have developed and cracks have appeared by the stresses and pressure of the time; if aberrations have become too obvious to be ignored or too deep-rooted to be corrected by an internal mechanism; if the traditional role of the legal profession requires urgent legislative scrutiny with a view to remedying the defects and strengthening and safeguarding the system; it is a matter exclusively for Parliament to consider; but the amendment in, question is not addressed to that purpose.
Aberrations there always have been in every system of administration; but whether they are merely peripheral or transient in character#23;mere ripples on a placid poor#23;or symptomatic of deeper malady requiring modification by prompt legislative intervention is a matter of grave significance for the jurists, sociologists and political scientists to ponder over.
So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not expressly, but impliedly reduced counsel#18;s role or capacity to represent his client as effectively as in the past. On a matter of such vital importance, it is most unlikely that Parliament would have resorted to implied legislative alteration of counsel#18;s capacity or status or effectiveness. In this respect, the words of Lord Atkin in Sourendra, AIR 1930 PC 158 comparing the Indian advocate with the advocate in England, Scotland and Ireland, are significant:
There are no local conditions which make it less desirable for the client to have the full benefit of an advocate#18;s experience and judgment. One reason, indeed for refusing to imply such a power would be a lack of confidence in the integrity of judgment of the Indian Advocate. No such considerations have been or indeed could be advanced, and their Lordships mention them but to dismiss them...#20;
JUDGMENT
THOMMEN, J.:— Leave granted.
2. The appellant who is the defendant in Suit No. 309 of 1972 challenges the judgment of the Bombay High Court in Chamber Summons No. 838 of 1990# in Execution Application No. 242 of 1989 whereby the High Court held that the decree made against the defendant in terms of a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, was valid and binding on the parties, and in the absence of any challenge against the order made under Order XXI, Rule 23, Civil Procedure Code allowing execution of the decree, the defendant was no longer entitled to resist execution by recourse to Chamber Summons. The High Court found that the decree was valid and in accordance with the provisions of Order XXIII, Rule 3, as amended by the C.P.C. (Amendment) Act, 1976.
# Reported in AIR 1991 Bom 185.
3. The only question which arises for consideration is as regards the construction of Order XXIII, Rule,3, C.P.C. We shall read this provision, as amended by the C.P.C. (Amendment) Act, 1976, bracketing the newly added words:
"O. 23, R. 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 satisfied 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 had 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, shall not be deemed to be lawful within the meaning of this rule.)"
4. Mr. Arun Jaitley, appearing for the appellant, says that the High Court was wrong in holding that, notwithstanding the amendment of 1976 inserting the words in writing and signed by the parties, it was still sufficient if the terms of compromise were reduced to writing and signed by counsel representing the parties, and not necessarily by the parties in person. Any such construction would do violence to the provision as amended in 1976. He says that the object of the amendment was to provide that no agreement or compromise adjusting wholly or in part a pending suit was valid unless such compromise was evidenced in writing and signed by the parties in person. The expression parties, he contends, means only parties and none else. To read counsel into that expression, as done by the High Court, is to presume that the legislature failed to say what it intended to say and to attempt to supply the omission by correcting the deficiency. This cannot be done. The legislature, on the other hand, made its intention explicit by providing that an agreement or compromise would form the basis of a decree only if the consensus was reduced to writing and signed by the parties. Neither an agent nor a pleader could act as a substitute for a party to sign the agreement or compromise. A decree based on a compromise not signed by the parties in person is a nullity and is incapable of execution.
5. Mr. Jaitley submits that if the legislature had intended to authorise counsel independently to sign the memorandum containing the terms of settlement, and allow a decree to be passed in terms thereof, the legislature would have said so by further adding the words or their counsel. In the absence of any such expression, it cannot be presumed that the legislature
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