Balaram vs Prag Singh - 1987 Supreme(MP) 764

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Petitioner: Arun Mishra
For the Respondents: R.C. Lahoti

Headnote:(1) Civil Procedure Code, 1908 – O. 23, R 3 (Proviso) – defendant denied to have signed compromise petition – compromise is not according to law.
       (2)Civil Procedure Code, 1908 – S. 96 and O. 43, R. 1 – trial Court refused to record compromise – appellate Court cannot interfere.
        Short Note
       1. Several contentions arc raised by Shri Arun Mishra, who appears for the petitioner, but we are satisfied that for a single and singular reason the said compromise recorded by the trial Court, and the appellate order also cannot be upheld. In para 5 of the impugned order the compromise is recorded under three clauses of which the first two clauses record defendant's admission that plaintiff was Bhumiswami of the suit land and that the defendant would not interfere with the possession thereof by the plaintiff in the third clause the learned Civil Judge noted that in case it was proved that defendant had not signed the compromise and it was signed by some third party then that objection would be properly disposed of in accordance with law.
       Held : It passes our comprehension how in such terms compromise can be recorded, in gross violation of Rule 3 of Order 23 C.P.C. The legal requirement is that it must be proved to the satisfaction of the Court recording the compromise that the document was signed by the parties. Indeed, unless that satisfaction is recorded no order can be passed under the said provision. The very fact that the learned Civil Judge kept the question open as to whether the defendant had really signed the compromise makes it clear that he had not been at all satisfied that the document was signed by the defendant and in any view of the matter it was not proved to his satisfaction that the signature on the document was that of the defendant.
       2. Indeed, what actually happened is that immediately after the suit was filed, without there being service effected on the defendant, a lawyer entered appearance on behalf of the defendant and filed Vakalatnama on 12 – 12 – 1984 namely the date preceding impugned order. The defendant never appeared in the Court or in the witness – box but the said lawyer entered the witness – box and admitted on behalf of the defendant the signature of the defendant on the compromise. The circumstances of the case apparently were such that the Court ought to have put on notice and made an inquiry that the defendant not having been served, whether his presence in the Court ought to be procured for the purpose of not only the signature on the compromise being proved but also the further fact that he had agreed to the compromise and that the claim made in the suit had been adjusted voluntarily and to the satisfaction of the parties. It was the case where the defendant had no opportunity to know the claim made in the suit by the plaintiff because he was not served and in terms of the proviso to Rule 3 of Order 23 C.P.C. he had no opportunity, therefore, to deny the alleged "adjustment or satisfaction". The duty which devolved on the Court in these circumstances was to ensure that defendant's presence was secured in the Court to afford him reasonable opportunity in that regard.
       3. Being aggrieved by the order the defendant, however, applied for a review thereof, An inquiry was made in that review proceedings and the trial Court recorded a dear and categorical finding therein, as per Annexure P – 10, of defendant's denial of his satisfying plaintiff's claim. This was done after receiving evidence on the defendant's side. The defendant entered the witness – box and denied that he had signed the compromise petition or had agreed to compromise, which could not have been recorded, accordingly, under Order 23, Rule 3 C.P.C. In that view of the matter, the order passed on 13 – 12 – 1984 was recalled and the consent decree was set aside. However, an appeal against that order passed on 8 – 5 – 1985 in review was taken by the plaintiff, who complained that he had been deprived of the opportunity of adducing evidence in rebuttal. Whatever that may be, the fact of the matter is that the appellate Court accepted appellant's plea that the compromise was, genuine acting only on admission of the defendant that he had signed the paper on which the registered address was filed. The finding and conclusion of the trial Court was reversed and the order passed in review was set aside. It is this order which is seriously challenged before us.
       4. We have no hesitation to hold at once that there being no additional evidence adduced in the appellate Court there could be no scope for that Court to take a different view of the evidence on record on which a contrary finding was reached by the appropriate Court having the primary jurisdiction to deal with the compromise in terms of the proviso to Rule 3 of Order 23. Indeed, it was the satisfaction of the trial Court as to whether the compromise was genuine or not and whether it was accepted or not by the parties. The trial Court having reviewed its earlier order and having reached the conclusion on the evidence before it, recorded in terms of the proviso to Rule 3 of Order 23 C.P.C. and having been refused to record compromise, that order was not liable to interference in appeal on such a tenuous ground as earlier alluded. The appellate order is palpably illegal and without jurisdiction. Petition allowed.