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2007 Supreme(AP) 17
2007(1) L.S. 126
IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH : : AT HYDERABAD
Present:
The Hon’ble Mr. Justice
L. Narasimha Reddy
C. Bala Krishnaiah ..Petitioner
Vs.
A.Kannaiah &
Ors., ..Respondents
C.M.P.No.49/07 in
S.A.No.136/02
Date:4-1-2007
Mr.Vedula Venkataramana, Advocate for the Petitioner.
Mr.P.R. Prasad, Advocate for the Respondents.
Headnote:CIVIL PROCEDURE CODE, Or.23, R.3 - CONTRACT ACT, Secs.19 & 19-A - “Compromise decree” - Trial Court decreed suit filed by petitioner for specific performance of agreement of sale - Appellate Court affirmed decree - LRs of respondents/defendants filed second appeal - High Court passing compromise decree in terms of Memorandum of compromise in C.M.P to effect that decree passed by trial Court and affirmed by appellate Court is set aside, in consideration of petitioner receiving certain amount - Petitioner filed SLP in Supreme Court against compromise decree contending that consent for compromise expressed by him on account of undue influence and exertion of pressure and same deserves to be set aside - Pursuant to permission of Supreme Court petitioner filed CMP in second appeal for setting aside compromise decree - Supreme Court directing High Court to decide Application filed by petitioner to set aside compromise decree, on merits.
Petitioner contends that his signature on Memorandum of Compromise obtained under threat and undue influence and that procedure prescribed for recording compromise not adhered to - Respondents contend that petitioner invented reasons to over come his obligation under compromise decree and that petitioner came forward voluntarily, to compromise matter and there did not exist any pressure or undue influence, either from respondents or from any other quarter.
Freedom of parties to a suit, to settle and compromise lis between them, has always been respected, and encouraged - In this case admittedly respondents did not sign agreement and it was signed by their Counsel - Conditions incorporated under Or.23, R.3 are mandatory - Respondents Counsel specially authorized by his clients to sign memorandum of compromise on their behalf - Undisputedly petitioner signed agreement, but his compliant is that it was not out of his free will - Free consent is hallmark and foundation of any agreement - In fact petitioner only party that attended Court.
Endeavour of Courts is to ensure that freedom of parties, to give consent for compromise, is not subjected to any external or internal forces, reason is that contract, in form of compromise, takes place, right under nose of Court - In this case, consent of petitioner for compromise recorded by High Court is far from free - At any rate, result of allowing present petition would be that matter would be decided on merits, and nothing more - It cannot be said that either petitioner, or respondents would be subjected to any hardship, if matter decided on contest and it would only enhance confidence of parties in Court - Hence compromise decree passed in Second Appeal, set aside - CMP, allowed.
A matter, which is somewhat delicate on facts, but interesting from the point of view of law, arises for consideration in this petition. The sole respondent in S.A.No.136 of 2002 filed this application, with a prayer to set aside the compromise decree passed by this court on 29.10.2003. The facts, which are relevant for the purpose of this petition, may briefly be stated, as under.
2. The petitioner herein filed O.S.No.3 of 1993, in the Court of Principal Senior Civil Judge, Tirupati, against one Sri A.Kannaiah, the father of the respondents, for the relief of specific performance of an agreement of sale, dated 22.8.1984. The suit was decreed by the trial court on 15.3.2000. Kannaiah filed A.S.No.37 of 2000, in the Court of III Additional District Judge, Tirupati. The appeal was dismissed, through judgment dated 14.12.2001. Kannaiah died, thereafter, and his legal representatives, the respondents herein, filed the present Second Appeal, against the petitioner herein.
3. C.M.P.No.24676 of 2003 was filed, with a prayer to pass a decree, in terms of the Memorandum of Compromise. On 29.10.2003, a compromise decree was passed, to the effect that the decree passed by the trial court in O.S.No.3 of 1993 and affirmed in A.S.No.37 of 2000, is set aside, in consideration of the petitioner receiving a sum of Rs.8,00,000/-. Certain other conditions were also spelt out.
4. Petitioner filed SLP (Civil) CC No.5789 of 2004, before the Hon’ble Supreme Court, against the said decree. He pleaded that the consent for the compromise was expressed by him, on account of undue influence and exertion of pressure, and that the same deserves to be set aside. Through an order dated 26.7.2004, the Hon’ble Supreme Court permitted the petitioner, to withdraw the SLP and granted him liberty to file an application before this court, to set aside the compromise decree. Thereafter, the present petition was filed.
5. The Registry of this court raised an objection about the delay in presentation of the CMP for setting aside the decree in the second appeal. Thereupon, C.M.P.No.12119 of 2004 was filed, with a prayer to condone the delay of 258 days. This Court refused to condone the delay and dismissed the CMP. The petitioner filed Civil Appeal No.3903 of 2006, before the Hon’ble Supreme Court, against same. Through its order dated 4.9.2006, the Hon’ble Supreme Court took the view that the application is governed by Article 137 of the Limitation Act, and it cannot be said that there was delay in presentation of the CMP. A direction was issued to this Court, to decide the application filed for setting aside the compromise decree, on merits.
6. In the affidavit filed in support of the CMP, the petitioner gave a detailed account of the proceedings, that ensued between himself and the respondents, from the beginning, till the passing of decree in question. His grievance is mostly about the alleged treatment meted out to him, in this court. He submits that the cumulative effect of various reasons stated by him, is that his signature on the Memorandum of Compromise was obtained, under threat and undue influence, and that the procedure prescribed for recording the compromise, was not adhered to.
7. On behalf of the respondents, a counter affidavit was filed, denying the allegations of the petitioner. It is stated that the petitioner had invented the reasons pleaded by him, to overcome his obligation under the compromise decree.
8. A group of five persons, i.e. M.Muni Laxmamma and others, filed C.M.P.No.7470 of 2002, to implead them as respondents 2 to 6, in the Second Appeal. The petition is yet to be ordered. The said persons were shown as respondents 2 to 6 in C.M.P.No.24676 of 2003. They too have filed a counter affidavit in this CMP, almost reiterating the contentions, advanced on behalf of the respondents.
9. Sri Vedula Venkata Ramana, learned counsel for the petitioner, submits that ever since the Second Appeal was listed for admission before this co
