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IN THE HIGH COURT OF ALLAHABAD
D. S. SINHA
BUDHA LAL - Appellant
Versus
RAM CHAND - Respondents
FIRST APPEAL 502 Of 1982
Decided On : 02/26/1992
COMPROMISE - ORDER XXIII RULE 3 OF THE CODE OF CIVIL PROCEDURE, 1908 - WRITTEN COMPROMISE - NECESSITY - A compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 must be in writing and signed by the parties. A mere reference to an alleged pre-existing compromise in the statements of the parties is not sufficient.
Fact of the Case:
The plaintiff filed a suit for partition of property. The parties referred to a pre-existing settlement/compromise in their statements. The trial court passed a decree in terms of the alleged settlement/compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908. The plaintiff appealed, arguing that there was no valid settlement/compromise.
Finding of the Court:
The lower appellate court set aside the trial court's decree and remanded the case for a fresh trial, holding that the settlement/compromise should have been in writing and signed by the parties.
Issues: Whether a compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 must be in writing and signed by the parties.
Ratio Decidendi: Order XXIII Rule 3 of the Code of Civil Procedure, 1908 expressly provides that the agreement or compromise must be in writing and duly signed by the parties. The Supreme Court has held that the compromise must be in writing and signed by the parties and there must be a completed agreement between them.
Final Decision: The appeal was dismissed, and the trial court was directed to expedite the disposal of the suit.
( 1 ) THIS first appeal is directed against the judgment and order dated 17/05/1982 passed by the VI Addl. District Judge, Agra in Civil Appeal No. 165 of 1981 whereby the learned Judge has set aside the judgment and decree dated 11/03/1981 rendered by the Munsif, Fatehabad, Agra in Original Suit No. 420 of 1977 and remanded the case to the trial Court for deciding it afresh.
( 2 ) RAM Chand, the plaintiff-respondent, filed a civil suit for partition of the property mentioned in the Schedule a to the plaint. The defendant-appellant filed his written statement resisting the claim of the plaintiff-respondent. The issues were framed and the plaintiff as well as defendant entered the witness-box. During the course of their statements the plaintiff and defendant made a reference with regard to certain settlement/ compromise which had already been arrived at between them. The parties also made a reference to the terms and conditions of the aforesaid settlement/compromise. The trial Court decided all the issues except issue No. 5 and gave findings thereon which are not relevant here. While considering the issue No. 5, which related to the grant of relief to the plaintiff, the trial Court concluded that the suit had to be decreed in terms of the stipulations of the alleged pre-existing settlement/compromise referred to by the parties in their statements. The trial Court, therefore, passed a decree under R. 3 of O. XXIII of the Code of Civil Procedure, 1908 hereinafter called the code.
( 3 ) THE plaintiff-respondent felt aggrieved by the decree of the trial Court and preferred an appeal asserting that there was no valid settlement/compromise between him and the defendant-appellant as envisaged by R. 3 of O. XXIII of the Code.
( 4 ) THE lower appellate Court, after considering the facts and circumstances of the case and also examining various authorities of various High Courts, came to the conclusion that the trial Court was not legally justified in passing the decree in terms of the stipulations of the alleged pre-existing settlement/compromise referred to by the plaintiff and defendant in their statements. The lower appellate Court was of the view that if the trial Court was satisfied about the settlement/ compromise, which it was according to the findings arrived at by it on issue No. 5, it should have directed the parties to file a written settlement/compromise duly signed by them, ordered the same to be recorded and then passed a decree in accordance therewith. The lower appellate Court being of the view that there was no written settlement/ compromise duly signed by the plaintiff and defendant before the trial Court, it set aside the decree and judgment of the trial Court and remanded the suit to be tried afresh. Hence this appeal.
( 5 ) THE Court has heard Sri G. C. Bhattacharya, learned counsel for the appellant, and Sri B. D. Mandhyan, learned counsel for the respondent, at length and in detail.
( 6 ) SRI Bhattacharya, learned counsel for the appellant, contends that the lower appellate Court fell in error in arriving at the conclusion that the settlement/compromise ought to have been in writing and duly signed by the plaintiff and defendant. Alternatively, he submitted that the statements of the plaintiff and defendant, which were in writing and duly signed by them ought to have been treated as a compromise under R. 3 of O. XXIII of the Code.
( 7 ) AFTER giving its anxious consideration to the submissions of Sri Bhattacharya, the Court is of the opinion that none of the contentions of Sri Bhattacharya has force.
( 8 ) RULE 3 of Order XXIII of the Code says that 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, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. Existence and production of a written compromise between the par
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