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1974 Supreme(AP) 123
Andhra Pradesh High Court
Judges : P.RAMACHANDRA RAJU
B.D.Mohan Rao - Appellant
Versus
Co-operative Industries EStates Ltd. - Respondent
Decided On : 09-03-74
A consent decree can be passed only after there has been an order recording the compromise. The recording of compromise is not purely a formal matter, but a question of substance. Under Order 23, Rule 3 the court has to find out if there is any agreement between the parties for compromise. The terms of settlement must be examined with care and caution and see that the parties understood the terms of the compromise and there is no fraud or misrepresentation.
Headnote:
CIVIL PROCEDURE CODE - ORDER 23 RULE 3 - COMPROMISE - AUTHORITY OF ADVOCATE - CONSENT DECREE - VALIDITY - COURT'S DUTY TO RECORD COMPROMISE - SPECIAL VAKALAT - NECESSITY.
Fact of the Case:
The petitioner filed a suit for a declaration of title and possession of a site against the respondent. A temporary injunction was granted in favor of the petitioner. During the vacation, the advocates of both parties filed an application under Order 39, Rule 4, C. P. C. to amend the temporary injunction order. The lower court modified the temporary injunction order based on the application. The petitioner filed an application to set aside the order, alleging that he did not authorize his counsel to file the application and that the compromise was illegal and against the principles of natural justice. The lower court dismissed the application, holding that the petitioner had a remedy by way of appeal and that the fraud, if any, was practiced on the petitioner by his counsel for which there were different remedies open to him.
Finding of the Court:
The court held that the consent order was passed without following the proper procedure and without the compromise petition being signed by the petitioner or there being any special vakalat from the petitioner authorizing the counsel to enter into the compromise on his behalf. The court further held that the lower court could set aside the consent order by exercising its inherent powers under Section 151, C. P. C. for the ends of justice and to prevent abuse of the process of the Court.
Issues: 1. Whether the consent order was passed without following the proper procedure? 2. Whether the lower court could set aside the consent order by exercising its inherent powers under Section 151, C. P. C.?
Ratio Decidendi: 1. The court held that the consent order was passed without following the proper procedure as the compromise petition was not signed by the petitioner and there was no special vakalat from the petitioner authorizing the counsel to enter into the compromise on his behalf. 2. The court held that the lower court could set aside the consent order by exercising its inherent powers under Section 151, C. P. C. for the ends of justice and to prevent abuse of the process of the Court.
Final Decision: The Civil Revision Petition was allowed with costs and the consent order passed by the Lower Court in I. A. No. 890/73 was set aside.
( 1 ) THIS C. R. P. arises out of suit O. S. No. 14 of 1971 on the file of the Court of Munsif Magistrate, Hyderabad (West ). The revision is directed against an order refusing to set aside the order passed in I. A. No. 890 of 1973 filed in I. A. 133/71. The petitioner herein filed the suit against the respondent which is the Co-operative Industrial Estates Limited, Sanathnagar (Balanagar), Hyderabad West, represented by its Chairman, for a declaration that the suit scheduled property, which is a site of an extent of 400 sq. yards at Sanathnagar (Balanagar ). Hyderabad West, in his property and to restrain the respondent permanently from interfering with his right, title and possession of the site and also to restrain the respondent from making any further construction of any structure thereon and also for a mandatory injunction to pull down and remove the structure already constructed by him thereon. Along with the suit, the petitioner filed the I. A. No. 133/71 and a temporary injunction against the respondent was granted in April, 1973. Thereafter, the suit was posted for trial after summer vacation. During the vacation, before the vacation Court, on 10-5-1973, I. A. No. 890/73 was filed, signed by the Advocates of the two parties under Order 39, Rule 4, C. P. C. to amend the temporary injunction order passed in I. A. No. 133/71. After the vacation, the plaintiff filed the present I. A. No. 254/73 against the order in which the C. R. P. is directed to set aside the order in I. A. No. 890/73. As it was refused by the lower court, the petitioner has come forward with this revision petition.
( 2 ) THE two advocates filed the I. A. No. 890/73 in the following terms:--"the parties agree that this Honble Court may be pleased to modify the order passed in I. a. No, 133/71 on the following terms and conditions:-- (1) That the defendant or any constituent member of it is permitted to complete the construction of the building, erect machinery, to do other ancillary acts on the said land, plot No. 76, Survey No. 123/b, admeasuring 400 square yards at Balanagar (Sanathnagar, Hyderabad ). (2) On declaration being granted by the Court the plaintiff will be entitled for adequate compensation only and not for possession of the said land. (3) That the compensation can be recovered from the party who will be found liable to pay ultimately. "
( 3 ) THIS was signed only by the Advocates of the petitioner and the respondent, and the petitioner and the respondent did not sign on it.
( 4 ) AS per the above terms, the lower court changed the temporary injunction order passed on 19-4-1973 in the I. A. No. 133/71, which was a simple one, namely, that a temporary injunction was granted in respect of the relief prayed for by the petitioner in the suit.
( 5 ) THE petitioner filed the application I. A. 254/73 alleging that he did not instruct or authorise his counsel to the agreed order, as mentioned in I. A. No. 890/73. It was done without his consent, secretly and behind his back. He did not sign on the compromise petition. The entire compromise proceedings are illegal, highly irregular and against all principles of natural justice and that he was neither called upon nor was asked whether he agreed to the compromise terms. The lower court dismissed the application of the petitioner on the ground that the petitioner has got a remedy to prefer an appeal against the order passed in I. A. No. 890/73 but, without exercising that option, he has chosen the remedy by filing a petition under Section 151, C. P. C. which can be exercised only to undo the effect of fraud practised on Court, and according to the allegation made by the petitioner, the fraud that was practised was on the petitioner by his counsel for which there are different remedies open to the petitioner. Following the decision of the Oudh High Court in Paran Kuer v. Manni Ltd. , AIR 1929 Oudh 211, wherein it was held that where a consent decree is passed by a court on confess
