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IN THE HIGH COURT OF BOMBAY
Bhairavia V.H., J.
Vishwanath Hari Vaidya since deceased through his heirs.... Appellants.
Versus
Bhagabai Shankar Wayale others .... Respondents.
S.A. No. 378 of 1983, decided on 7-7-1994.
Advocates appeared :
Y.V. Divekar for V.V. Divekar, for appellants.
D.S. Mhaispurkar P.S. Bhangre, for respondents Nos. 2/1 to 2/3.
COMPROMISE - ORDER XXIII, RULE 3, CIVIL PROCEDURE CODE - COMPROMISE PURSHIS - VALIDITY - INTERPRETATION - EFFECT ON SUBSEQUENT PROCEEDINGS - COURT'S DISCRETION - MAIN LEGAL POINT - A compromise purshis filed in a proceeding and verified by the Court in the presence of the parties-signatories should not be misused by turning hostile to it after some time for one or the other reasons.
Fact of the Case:
Plaintiffs filed a suit for possession of agricultural land given to defendant No. 1 for cultivation, alleging that defendant No. 1 parted with a portion of the land to defendant No. 2 without permission, making defendant No. 2 a trespasser. During the pendency of the suit, plaintiffs and defendant No. 1 entered into a compromise and filed a compromise purshis before the trial Court, which was recorded as Exhibit 81. Despite the compromise, the trial Court proceeded with the suit, recorded evidence, and dismissed the suit. The appellate court confirmed the trial court's judgment.
Finding of the Court:
The High Court held that the trial court erred in proceeding with the suit after the compromise purshis was filed and should have drawn a decree in accordance with the compromise terms. However, the compromise was not perfect because defendant No. 2, who was an interested and affected party, had not signed it. Therefore, no decree could be passed on the basis of such an incomplete compromise. The High Court also held that the plaintiffs failed to give a sufficient description of the portion alleged to have been occupied by defendant No. 2 as a trespasser, and that the agreement of sale between the plaintiffs and defendant No. 1 was valid. Therefore, the subsequent induction of defendant No. 2 could not be held as trespasser.
Issues: 1. Whether the trial court erred in proceeding with the suit after the compromise purshis was filed? 2. Whether the compromise purshis was valid and binding on the parties? 3. Whether the plaintiffs sufficiently described the portion alleged to have been occupied by defendant No. 2 as a trespasser? 4. Whether the agreement of sale between the plaintiffs and defendant No. 1 was valid?
Ratio Decidendi: 1. Order XXIII, Rule 3 of the Civil Procedure Code requires the Court to pass a decree in accordance with a compromise purshis that is proved to be lawful and signed by the parties. However, the compromise in this case was not perfect because defendant No. 2, who was an interested and affected party, had not signed it. Therefore, no decree could be passed on the basis of such an incomplete compromise. 2. The plaintiffs failed to give a sufficient description of the portion alleged to have been occupied by defendant No. 2 as a trespasser, as required under Order 6, Rule 4 of the Civil Procedure Code. 3. The agreement of sale between the plaintiffs and defendant No. 1 was held to be valid.
Final Decision: The appeal was dismissed.
2. Short facts of the case are that, the appellants-plaintiffs had filed a suit for possession of the property bearing Survey No. 88, Hissa No. 2, admeasuring 131/4 gunthas, situated within the local limits of Kalyan Municipal Council. It is the case of the plaintiffs that the suit property being agricultural land was given to the defendant No. 1 for cultivation. It is further alleged that without the permission of the plaintiffs, defendant No.1 parted some portion of the suit property with defendant No. 2. Thus, the defendant No. 2 occupied the suit property as a trespasser. It is to be noted here that though the suit property was originally agricultural land, situated within the local limits of Kalyan Municipal Council, did not remain agricultural land but converted into N.A. and it reveals from the record that respondent No. 2 has built up the house on this land.
3. It is the case of the appellants-plaintiffs in this appeal before the trial Court that pending the suit, the respondent-defendant No. 1 and plaintiff entered into compromise and filed a compromise purshis before the trial Court which is on record as Exhibit 81. It is submitted that by this purshis, the defendant No. 1 has cancelled the alleged agreement of sale between the plaintiffs and the defendant i.e. Exhibit 100 and the earnest money which was paid to defendant No.1 by the plaintiffs, returned to the plaintiffs by defendant No. 1. Thus, compromised terms were recorded by the learned trial Judge and the endorsement to that effect is at Exhibit 81. Despite that, the Learned trial Judge proceeded with the suit, recorded the evidence and dismissed the suit of the plaintiffs, by his judgment and order dated 29th August, 1975. Appeal against the said judgment and order being Civil Appeal No. 310 of 1975 in the Court of Extra Assistant Judge, Thane came to be dismissed by order dated 28th October, 1980. Hence, this appeal.
4. The learned Counsel for the appellants Mr. Y.V. Divekar has stated that there was a bearing in important question of law before this Court that under Order XXIII, Rule 3 of Civil Procedure Code, the Court recorded the compromised terms required to pass the judicial order on the basis of, compromised purshis and that is binding to the parties. It has been contended by Mr. Divekar that the learned trial Judge instead of drawing decree on the basis of compromise purshis Exhibit 81 proceeded with the suit and decided the suit on merits. According to him, this is an illegal order. The Appellate Court has also committed the same error in confirming the judgment and order of the Learned trial Judge. Mr. Divekar has emphatically argued this point and in support of his arguments, he relied upon the provision under Order XXIII, Rule 3 of the Civil Procedure Code.
Order XXIII, Rule 3 reads as under :—
3. 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 satisfies 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 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 has been arrived at, the Court shall decide the question; but no adjournment shall be granted fo
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