Important point
Refusal to condone the delay of 1440 days in filing the writ appeal is held not justified considering that the disposal of the writ petition by the High Court was based on a compromise memo which was not signed by both the parties.

Headnote:Civil Procedure Code, 1908—Order XXIII Rule 3, Section 141—Constitution of India—Article 226—Refusal to condone delay of 1440 days in filing writ appeal—Writ petition was disposed of by the Single Judge of the High Court on the basis of a compromise memo and an affidavit stated to have been filed by the parties—It was only the respondents who filed the memo and the affidavit and the appellants had not signed them—High Court proceeded on entirely erroneous premises—Acting on the basis of memo or affidavit which was signed by respondents only the dispute could not have been settled against the appellants without their consent—Compromise if not signed by the parties cannot be recorded by the Court—Order passed by the Single Judge was unsustainable—Division Bench of the High Court should have condoned the delay even if it was substantial.
Held : On a perusal of the so called compromise memo it is noticed that the same was signed by the respondents 2(a) and 2(b) before the Notary on 1.7.1998 and it contains the thumb impression of respondents 2(a) and 2(b), namely, Smt. Saraswathi and Girija @ Ananda. The memo itself shows that the respondents 2(a) and 2(b) have no objection for quashing the order dated 18.7.1979 passed by the Land Tribunal, Udupi in respect of certain lands. It is also mentioned therein that respondent 2(a) has filed a separate affidavit on her own behalf and on behalf of the respondent 2(b). (Para 5)
Though in terms of Section 141 (Explanation) C.P.C., the expression ‘proceedings’ is not applicable to proceeding under Article 226 of the Constitution of India, 1950 (in short the ‘Constitution’), the requirement under Order XXIII Rule 3 can be pressed into service even in writ proceedings. Here even the signature of the counsel of petitioners is not there. Above being the position, we find the order passed by the learned Single Judge is unsustainable. When the writ petition was disposed of in an indefensible manner by learned Single Judge, the Division Bench should have condoned the delay even if it was substantial in view of the reasons indicated by the appellants. It did not even advert to the stand of the appellants that the learned Single Judge should not have disposed of the matter on the basis of the memo and affidavit which were only signed and filed by respondents 2(a) and 2(b) and not by the appellants. (Paras 12 to 14)

Judgment

Arijit Pasayat, J.—Leave granted.

2. By the impugned judgment a Division Bench of the Karnataka High Court refused to condone the delay of 1440 days in filing the writ appeal. The writ petition No. 28336 of 1997 was disposed of by order dated 4.9.1998 by a learned Single Judge of the High Court which was the subject matter of challenge in the Writ Appeal.

3. Stand of the appellants before the Division Bench of High Court was that they came to know about the disposal of the writ petition only in the month of 2002 when respondents 2(a) and 2(b) tried to get the Khata changed in their names on the basis of the purported compromise memo filed before learned Single Judge on the basis of which the writ petition was disposed of. It was their specific stand that compromise memo in question was never signed by them. The Division Bench held that the delay was not sufficiently explained.

4. In support of the appeal, learned counsel for the appellants submitted that disposal by the High Court was on entirely erroneous premises. The disposal was purportedly on the basis of a compromise memo and an affidavit stated to have been filed by the parties. On a bare perusal of the relevant documents it is clear that it was only the respondents who filed the memo and the affidavit and the appellants had not signed them. Therefore, the learned Single Judge should not have disposed of the matter in the manner done. There is no appearance on behalf of the respondents in spite of service of notice.

5. On a perusal of the so called compromise memo it is noticed that the same was signed by the respondents 2(a) and 2(b) before the Notary on 1.7.1998 and it contains the thumb impression of respondents 2(a) and 2(b), namely, Smt. Saraswathi and Girija @ Ananda. The memo itself shows that the respondents 2(a) and 2(b) have no objection for quashing the order dated 18.7.1979 passed by the Land Tribunal, Udupi in respect of certain lands. It is also mentioned therein that respondent 2(a) has filed a separate affidavit on her own behalf and on behalf of the respondent 2(b).

6. The affidavit is by Smt. Saraswathi respondents No.2(a) in the writ petition. The relevant portions of the memo and the affidavit read as follows:

“Memo:—It is submitted that the Respondents 2(a) and 2(b) have no objection for quashing of the order dated 18.7.1979 passed by the Land Tribunal, Udupi in No. LRY-78-43-TRI-3425-79-80 in respect of the lands in S.No. 143-1-0.50 acre and 142-1-1 acre of Herga village, Udupi Taluk and Dist.

Affidavit:—I, therefore, pray that this Hon’ble Court may be pleased to modify the order of the Land Tribunal, Udupi dated 18.7.1979 in No.LRY-78-43-TRI-3425-79-80 by quashing the same to the extent of 50 cents in S.No. 143-1 and 1 acre in S.No. 142-1 of Herga village, Udupi Taluk and Dist., in the ends of justice and equity.”

7. The High Court took note of the memo which according to it was filed by the parties and their counsel and was supported by an affidavit. The High Court thereafter quashed the grant of occupancy right in respect of two survey numbers and affirmed the order of the Tribunal in respect of the remaining survey numbers.

8. It is crystal clear that the High Court proceeded on entirely erroneous premises. If it wanted to dispose of a part of the dispute on the basis of a settlement purportedly arrived at between the parties, the memo and affidavit should have been filed by the parties concerned. Acting on the basis of memo or affidavit which was signed by the respondents only the dispute could not have been settled against the appellants without their consent.

9. At this juncture, it would be appropriate to take note of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (in short ‘CPC’) dealing with compromise of suit. Same reads as follows:

“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

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2005 Supreme(SC) 435

Important pointRefusal to condone the delay of 1440 days in filing the writ appeal is held not justified considering that the disposal of the writ petition by the High Court was based on a compromise memo which was not signed by both the parties.

Cases Referred (2)

Important point
Refusal to condone the delay of 1440 days in filing the writ appeal is held not justified considering that the disposal of the writ petition by the High Court was based on a compromise memo which was not signed by both the parties.