9911796707
TMI Blog2006 (7) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... landlords (Respondents 1 & 2 and their father) terminated the said tenancy as at the end of 31.3.1989 by notice dated 9.2.1989 and filed a suit against the firm and Pushpa Devi in the court of the District Judge, Delhi on 10.4.1989 for recovery of the possession of the suit property. It was originally numbered as RC Suit No. 265 of 1989 and later, transferred to the court of the Sub-Judge, New Delhi (later, Civil Judge, Delhi) and renumbered as Suit No. 52 of 1993. Pushpa Devi, second defendant, resisted the suit inter alia on the ground that the first defendant firm had been dissolved and as a consequence all its partners including herself became the co-tenants and the suit was not maintainable without impleading the other partners. Subsequently, M.L. Wadhwa, S. K. Mittal and Badan Singh (the other three partners of the firm), were impleaded as defendants 3 to 5. During the pendency of the suit, the first plaintiff S. Rameshwar died, and the suit was continued by showing his two sons (original plaintiffs 2 & 3) as plaintiffs 1 & 2. The fifth defendant also died and his son Chaman Lal Gahlot was brought on record in his place as the fifth defendant. 4. Two witnesses were examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; (Sd. Civil Judge) Thereafter, the following statement of Shri B. Khan, counsel for the plaintiffs was recorded : "Statement of Shri B. Khan, Counsel for both the plaintiffs. W.O. I have instructions on behalf of plaintiffs to make the present statement that in view of the statement made by the counsel for the defendants, on behalf of the defendants, the suit may kindly be disposed of accordingly. I accept the terms of the statement of counsel for defendants. The plaintiffs are also present today in the court and will count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Shri Dinesh Garg though appearing for all defendants, had not filed Vakalatnama for defendants 3 & 4 and one Shayam Kishore had entered appearance for them. Therefore, an application under sections 151 and 152 CPC was moved. Shri Dinesh Garg filed the Vakalatnama on behalf of the defendants 3 & 4 on 18.7.2001. In view of it, the trial court made the following order on 18.7.2001 : "Reply to application under section 151 and 152 filed. Copies given. As stated Vakalatnama on behalf of the defendants 1, 2, & 5 is already on record but inadvertently, the Vakalatnama on behalf of the defendants 3 & 4 was not filed which the counsel Shri Dinesh Garg is filing today. It be taken on record. Counsel for defendant states that when he gave the statement, he was duly authorized on behalf of the defendants for making statement. He further states that defendant no. 1 is a partnership firm which has now been dissolved and is not in existence and even if the decree is passed against defendant no.1 then also it will be executable against defendents 2 to 5 only. However, I pass a decree against all the defendants. Let the decree be modified and a fresh decree sheet be prepared mentioning th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter case was adjourned on 13.1.2000, 24.4.2000, 7.7.2000, 4.9.2000, 16.10.2000, 20.12.2000 and 26.4.2001 for evidence of remaining defendants but none appeared in witness box. After contesting the matter for about 10 years when it was not possible to take any further date for recording of the evidence of the defendants, the counsel advised the defendant no. 2 to lead evidence and made it clear that it will not be possible the counsel to meet any further adjournment. However, she requested for getting her some time to enable her to find an alternative accommodation. The counsel took her oral instructions under good faith and because of level of confidence developed after representing Usha Group for about 18 years, started negotiations with the plaintiff which went on for several months, during which period there were several offers and counter offers duly communicated to the defendants. Ultimately when plaintiff came out with plea to first clear the arrears of rent with effect from 01.10.1999, the counsel asked defendant no. 2 to clear the arrears which were sent to counsel vide communication of their Law Officer dated 9.4.2001 through the Head of Law Department Dr. M.C. Gupta. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not require any document in writing signed by the parties), and that there was a valid compromise under Order 23 Rule 3 CPC and the second defendant "could not repudiate the consensus by attempting to challenge their satisfaction". From the fact that the second defendant did not pursue the application dated 21.8.2001 filed before the trial court, and from the fact that she did not challenge the integrity of her counsel (who entered into the compromise) either before the appellate court or before it, the High Court drew an inference that second defendant's counsel Sri Dinesh Garg, had the authority on her behalf to make the statement leading to the consent decree. 9. The judgment of the High Court is challenged by the appellant (second defendant's legal representative) in this appeal. Learned counsel for the appellant contended that the High Court having held that the case did not fall under the first part of Rule 3 of Order 23, committed a serious error in holding that the case fell under the second part of the said Rule. It is contended that the second part applies only where the defendant satisfies the plaintiff in regard to the whole or part of the subject matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;pleading'. Though this Court will not normally permit a new plea to be raised at the hearing of the special leave petition or an appeal under Article 136, where such plea does not involve any question of fact or amendment of pleading and is purely one of law, particularly relating to jurisdiction of the appellate court, it can be entertained by this Court. (See Shanti Devi vs. Bimla Devi - AIR 1988 SC 2141 and Zahoor vs. State of U.P - AIR 1991 SC 41). In Hiralal vs. Kasturi Devi [AIR 1967 SC 1853], this Court observed : " . though the question of jurisdiction had not been urged before the High Court, it stares one in the face of the judgment of the appellate court. We are satisfied that the appellate court had no jurisdiction though this point was not raised in the High Court, it is so obvious that we have permitted the plea to be raised before us." In this case, the contention raised being one relating to jurisdiction of the appellate court, we have permitted the said contention and heard both sides thereon. 11. Section 96 provides for appeals from original decrees. Sub-section (3) of section 96, however, provided that no appeal shall lie f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code. Re : Point No. (ii) 13. Order XXIII deals with withdrawal and adjustment of suits. Rule 3 relates to compromise of suits, relevant portion of which is extracted below : "3. Compromise of suit. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff in respect of the subject-matter of the suit, nothing further remains to be done or enforced and there is no question of any 'enforcement' or 'execution' of the decree to be passed in terms of it. Let us illustrate with reference to a money-suit filed for recovery of say a sum of Rupees one lakh. Parties may enter into a lawful agreement or compromise in writing and signed by them, agreeing that the defendant will pay the sum of Rupees one lakh within a specified period or specified manner or may agree that only a sum of Rs. 75,000 shall be paid by the defendant in full and final settlement of the claim. Such agreement or compromise will fall under the first Part and if defendant does not fulfil the promise, the plaintiff can enforce it by levying execution. On the other hand, the parties may submit to the court that defendant has already paid a sum of Rupees one lakh or Rs. 75,000/- in full and final satisfaction or that the suit claim has been fully settled by the defendant out of court (either by mentioning the amount paid or not mentioning it) or that plaintiff will not press the claim. Here the obligation is already performed by the defendant or plaintiff ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or delivery of possession, the suit will be disposed of recording the same, under the second part. In such an event, there will be disposal of the suit, but no 'executable' decree. 16. In this case, under the settlement, the tenant undertook to vacate the suit property on a future date (that is 22.1.2002) and pay the agreed rent till then. The decree in pursuance of such settlement was an 'executable' decree. Therefore the settlement did not fall under the second part, but under the first part of Rule 3. The High Court obviously committed an error in holding that the case fell under the second part of Rule 3. 17. The next question is where an agreement or compromise falls under the first part, what is the meaning and significance of the words 'in writing' and 'signed by the parties' occurring in Rule 3 ? The appellant contends that the words 'in writing' and 'signed by the parties' would contemplate drawing up of a document or instrument or a compromise petition containing the terms of the settlement in writing and signed by the parties. The appellant points out that in this case, there is no such instrument, document or petition in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not expressly, but impliedly reduced counsel's role or capacity to represent his client as effectively as in the past x x x x x 37. We may, however, hasten to add that it will be prudent for counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement of compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted 38. Considering the traditionally recognized role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpromise in writing. 20. Consequently, the statements of the parties or their counsel, recorded by the court and duly signed by the persons making the statements, would be 'statement in writing signed by the parties'. The court, however, has to satisfy itself that the terms of the compromise are lawful. In this case we find from the trial court records that the second defendant had executed a vakalatnama empowering her counsel Sri Dinesh Garg to act for her in respect of the suit and also to enter into any compromise. Hence there can be no doubt that Sri Dinesh Garg was authorized by the second defendant to enter into a compromise. We also find that the counsel for the plaintiffs and counsel for the defendants made solemn statements on oath before the trial court specifying the terms of compromise, which were duly recorded in writing and signed by them. The requirements of the first part of Rule 3 of Order XXIII are fully satisfied in this case. 21. The matter can be viewed from a different angle also. After the issues were framed by the trial court, the plaintiffs had examined two witnesses and closed their evidence and thereafter the matter was set down for the evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v. Chatur Bhuj Goel [1988 (1) SCC 270] to contend that a compromise should be reduced into writing in the form of an 'instrument' and signed by the parties to be valid under Order 23 Rule 3. He submitted that recording of the statements of the parties or their counsel, would not be an instrument of compromise. An 'instrument', according to him, connotes a regular document drawn up in the form of an agreement. We extract below the observations relied on by the appellant: "10. Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, an agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing." We have already re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord against a tenant filed in the year 1993. Plaintiff's evidence was closed in 1998. The contesting defendant (defendant No.2) did not lead any evidence, and her evidence was treated as closed. The matter was dragged on for 3 years for defendant's evidence after the conclusion of plaintiff's evidence. It was noted on 19.5.2001 that no further adjournment will be granted for the evidence of defendants 4 and 5 (who are not contesting the matter), on the next date of hearing (23.5.2001). When the matter finally came up on 23.5.2001, no evidence was tendered. On the other hand, a statement was made agreeing to vacate the premises by 22.1.2002. The trial court took care to ensure that the statements of both counsel were recorded on oath and signed. Thereafter, it passed a consent decree. The attempts of tenants in such matters to protract the litigation indefinitely by raising frivolous and vexatious contentions regarding the compromise and going back on the solemn undertaking given to court, should be deprecated. In this context, we may refer to the observation made by this Court a similar situation in Smt. Jamilabai Abdul Kadar v. Shankarlal Gulabchand [AIR 1975 SC 2202] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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