2009 Supreme(SC) 290

2009(2) Supreme 77
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha and Dr. Mukundakam Sharma, JJ.
Sneh Gupta — Appellant
versus
Devi Sarup & Ors. — Respondents
Civil Appeal No. 1085 of 2009
(Arising out of SLP (C) No.4045 of 2007)
Decided on : 17-02-2009

IMPORTANT POINTS
A compromise decree is not binding on such defendants who are not parties thereto.
A suit cannot be withdrawn after acquiring a privilege.
There is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentiality or commit some act which would amount to professional misconduct.
The doctrine of ratification is not applicable for the purpose of amendment or modification of a decree.
Even if an order is void or voidable, the same must be set aside.

Headnote:(a) Code of Civil Procedure, 1908 – Order XXIII, Rule 1(1) – In decreeing a suit or even permitting withdrawal of the same pursuant to a compromise, provisions of Order XXIII, rule 1 do not apply – Even in such a case, a permission to withdraw the suit could have been given only with notice to the respondents who had become entitled to some interest in the property by reason of a judgment and decree passed in the suit. (Para 19)

        (b) Code of Civil Procedure, 1908 – Order XXIII, Rule 1 – Even if Order XXIII, rule 1 was applicable, in terms of rule 1A, the appellant as a defendant in the suit was entitled to be transposed as a plaintiff in terms of Order I rule 10; and the Court was bound to pass an order having due regard to the question as to whether she had a substantial question to be decided as against any of the other defendants. (Para 21)

        (c) Code of Civil Procedure, 1908 – Order XXIII, Rule 3 – Appellant having got a decree in her favour, cannot be deprived fruits of the same simply by reason of an agreement between some of the parties or otherwise – A compromise decree is not binding on such defendants who are not parties thereto. (Paras 21 and 22)

        (d) Code of Civil Procedure, 1908 – Order XXIII, Rule 3 – A consent decree is merely an agreement between the parties with the seal of the court superadded to it. (Para 23)

        (1969) 2 SCC 201; JT 2007 (12) SC 352 – Relied upon.

        (e) Code of Civil Procedure, 1908 – Order XXIII, Rule 3 – If a compromise is to be held to be binding it must be signed either by the parties or by their counsel or both – Failing that, Order XXIII, Rule 3 would not be applicable. (Para 23)

        (1988) 1 SCC 270; (1999) 4 SCC 89; (2003) 6 SCC 230; (2005) 4 SCC 117 – Relied upon.

        (2006) 1 SCC 148 – Distinguished.

        (f) Title – If a person derives title in terms of statutory provisions, he/she cannot be deprived thereof by an agreement entered into by other parties – Further, a right in the property can be relinquished only by a registered instrument. (Para 27)

        (g) Code of Civil Procedure, 1908 – Order XXIII, Rule 1(1) – A suit cannot be withdrawn after acquiring a privilege. (Para 28)

        (1972) 2 SCC 721; (1999) 4 SCC 89; (1964) 2 SCR 538; (1967) 3 SCR 886 – Relied upon.

        (h) Constitution of India – Article 227 – High Court is not expected to enter into disputed question of fact – It could intervene only if there existed an error apparent on the face of the record or, if any other well known principle of judicial review was found to be applicable. (Para 33)

        (2004)6 SCC 71 – Relied upon.

        (i) Estoppel – There is no estoppel against statute. (Para 36)

        (j) Advocates Act 1961 – Section 34 – A counsel appearing for a party is expected to be independent – There is no presumption that only because two lawyers are practicing from the same chamber, they would breach their confidentiality or commit some act which would amount to professional misconduct. (Para 37)

        (k) Judicial Review – If a hearing has to preponed, it should be done with notice to all concerned – That having not been done, appellant cannot be presumed to have knowledge of the prepnement. (Paras 38 and 39)

        (2008) 7 SCC 259 – Distinguished.

        (l) Code of Civil Procedure, 1908 – Order XXIII Rule 3 – If the court had no jurisdiction to accept the compromise in defiance of the mandatory provisions, the question of invoking the doctrine of ratification would not arise – The doctrine of ratification is not applicable for the purpose of amendment or modification of a decree. (Para 40)

        (2006) 7 SCC 756; AIR 1961 SC 797 – Distinguished.

        (m) Limitation Act, 1963 – Article 123 – Even if an order is void or voidable, the same must be set aside. (Para 42)

        (2006) 7 SCC 470; (2004) 2 SCC 377; (1996) 4 SCC 445 – Relied upon.

        (1988) 2 SCC 602 – Distinguished impliedly.

        (n) Limitation Act, 1963 – Article 123 – The Court below had the jurisdiction to set aside the suit – The limitation, however, in a case of this nature would not begin to run from the date of knowledge. (Para 43)

        (2005) 7 SCC 447; (1991) 4 SCC 1 – Relied upon.

        (o) Limitation Act, 1963 – Article 123 – Article 123 is in two parts – In a case where summons have been served upon a party, the first part shall apply – However, in a case where the summons have not been served, the second part shall apply. (Para 44)

        (1986) 1 SCC 512; (1967) 2 SCR 757 – Relied upon.

        (2007) 9 SCC 466 – Distinguished.

        (p) Limitation Act, 1963 – Article 123 – The compromise may be void or voidable – In either case it is required to be set aside by filing a suit within the period of limitation. (Para 45)

        (1996) 7 SCC 767 – Relied upon.

        (q) Limitation Act, 1963 – Section 3 – In absence of any application for condonation of delay, the Court has no jurisdiction to entertain the application for setting aside the decree. (Para 49)

        (2003) 7 SCC 66; (2003) (7) SCC 52 – Relied upon.

       Facts of the case :

        1. Raghbir Singh is said to be the third cousin of Banu Mal. Banumal is said to have executed a Will in favour of Munni Devi on or about 14.11.1937. He is again said to have executed a Will in favour of Raghbir Singh on or about 27.3.1943. According to the plaintiff, Raghbir Singh had acquired life interest in the purporting said Will without having any right to alienate, transfer, mortgage or creating any charge on the properties.

        2. Raghuvir Singh transferred the property in favour of his wife and son.

        3. Two suits were filed. Whereas the decree prayed for in Suit No.303 of 1992 was for a declaration that Raghubir Singh was only having a life interest in the suit property and having not abided the terms and conditions contained in the said Will dated 27.3.1943, has lost his right to manage the property in suit; an order of mutation was the subject matter of Suit No.185 of 1989.

        4. Title Suit No.185 was decreed by a judgment and decree dated 30.10.1996 passed by the Additional Civil Judge, Senior Division Jagadhari, Haryana which was appealed against.

        5. During the pendency of the said appeals, the plaintiff and the respondent No.3 entered into a compromise. The appeal was allowed recording the compromise and dismissing the suit of Veena Nirwani. A declaration was also made that the appellants therein (Respondents Nos. 1 to 3 herein) were the absolute owners of the said property.

        6. The learned Additional District Judge by an order dated 29.9.2005 set aside the compromise decree dated 25.4.1998 opining that the same was illegal, null and void.

        7. Writ applications preferred thereagainst have been allowed by a learned Single Judge of the High Court by reason of the impugned Judgment.

       Finding of the Court :

        There is no infirmity in the impugned judgment.

       Result : Appeal dismissed.