9911796707
TMI Blog2006 (7) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... th recorded in writing by the court and duly read over and accepted to be correct by the person making the statement and signed by him, can be said to be not in writing? Obviously, no. We may also in this behalf refer to Section 3 of the Evidence Act which defines a document as any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording the matter. The statements recorded by the court will, therefore, amount to a compromise in writing. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated 3.3.2004 passed by learned Single Judge of Delhi High Court in FA No.247 of 2003. 2. Respondents 1 2 are the landlords of the suit property (front portion of residential premises no. C-25, Friends Colony, New Delhi). Respondents 1 2 and their father Late Brig. S. Rameshwar let out the suit property with the fittings and fixtures to M/s Usha Fisheries Agriculture and Dairy Farm, a partnership firm (third respondent herein) for a period of three years under a registered lease deed dated 6.6.1979, the purpose being the residential use of a partner of the firm. Pushpa Devi (mother of the appellant) and respondents 4, 5 6 were its partners. The suit property was being used by Pushpa Devi for her residential use. The tenancy was continued after the lease term of three years. 3. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt : Statement of Shri Dinesh Garg, Adv. for the defendants. W. O. I have instructions on behalf of the defendants to make the present statement that the defendants undertake to vacate the suit premises by 22.1.2002 and will keep on paying the rent/damages @ ₹ 4800/- w.e.f. 1.5.2001, till the vacation of the suit premises. The rent upto 30.4.2001 already stands paid. Sd/- Dinesh Garg, Adv. R.O.A.C. (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 countersign this statement. Sd/- B. Khan, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n annexed with the plaint. File be sent to RR. Sd/Civil Judge Accordingly, a fresh decree was drawn on 18.7.2001 in terms of the final order dated 23.5.2001. 6. On 21.8.2001, second defendant (Pushpa Devi) filed an application under section 151 CPC for setting aside the decree dated 18.7.2001 alleging that she had not instructed her counsel Shri Dinesh Garg to enter into any compromise on her behalf that there was no written compromise between the parties duly signed by the parties , and therefore, there was no lawful agreement or compromise. The court issued notice of the said application to Shri Dinesh Garg, counsel for the defendants as also the plaintiffs. Shri Dinesh Garg filed a detailed statement dated 7.12.2001. We extract below the relevant portions of the said statement : The counsel had represented the defendant no. 2 for about 12 years in the aforesaid matter. The counsel was getting the instructions from the defendant no. 2 most of times through her daughter Ms. Sadhna Rai or her son in law, Shri Vinay Rai or through Group Head of Law Department Dr. M.C. Gupta. All the proceedings were always communicated to the defendant no.2. After the closing of ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff as well as this Hon'ble Court was pleased to allow time upto 22.1.2002 to the defendants to vacate the premises. Immediately after recording of the statement, a written communication dated 24.5.2001 was sent to the defendant no. 2 as well as to Dr. M.C. Gupta, Head of the Law Department of Usha Group of Companies was sent by Registered A.D. post clearly indicating therein that a statement has been made as per the instructions and that the decree has been passed. This communication was duly received by the defendant no. 2 as well as Dr. M.C. Gupta. The copy of the letter, postal receipts and the AD card duly signed by the defendant as received are annexed. 7. The second defendant did not, however, pursue her application dated 21.8.2001 for setting aside the consent decree. On 27.8.2001, within six days of filing the application dated 21.8.2001 before the trial court for setting aside the decree, the second defendant filed an appeal against the said consent decree before the District Judge, Delhi. The appellate court by judgment dated 21.12.2002 set aside the consent decree on the ground that there was no agreement or compromise reduced to writing and signed by the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to vacate the suit premises on a future date, that is on or before 22.1.2002, it was a promise or an agreement to do an act in future to satisfy the suit claim, and not a case where defendant satisfies the plaintiff in respect of the subject matter of the suit . He pointed out that if the defendants had vacated and delivered the premises to the plaintiffs and thereafter the counsel for the defendants had confirmed the same and the suit had been disposed of recording the said submission, then it would fall under the second part. The appellant contends that the High Court having held that the case did not fall under the first part of Rule 3, and the case demonstrably not falling under the second part of Rule 3, it has to be held that there was no lawful agreement or compromise. It is submitted that the first appellate court was justified in setting aside the consent decree and remanding the matter to the trial court. On the other hand, the learned counsel for the landlords contended that the District Court had no jurisdiction to entertain the appeal against a consent decree. It is also contended that there was a compromise by admitting the claim of the plaintiffs, and, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order 43 was omitted by Act 104 of 1976 with effect from 1.2.1977. Simultaneously, a proviso was added to Rule 3 Order 23 with effect from 1.2.1977. We extract below the relevant portion of the said proviso : 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 Rule 3A was also added in Order 23 with effect from 1.2.1977 barring any suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. 12. The position that emerges from the amended provisions of Order 23, can be summed up thus : (i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A. (iv) A consent decree operates as an estoppel and is valid and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The second part provides that where a defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such satisfaction to be recorded and shall pass a decree in accordance therewith. The Rule also makes it clear that the compromise or agreement may relate to issues or disputes which are not the subject-matter of the suit and that such compromise or agreement may be entered not only among the parties to the suit, but others also, but the decree to be passed shall be confined to the parties to the suit whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. We are not, however, concerned with this aspect of the Rule in this appeal. 14. What is the difference between the first part and the second part of Rule 3 ? The first part refers to situations where an agreement or compromise is entered into in writing and signed by the parties. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by levy of execution, as there is no obligation to be performed by the defendant in pursuance of the decree. Such 'satisfaction' need not be expressed by an agreement or compromise in writing and signed by the parties. It can be by a unilateral submission by the plaintiff or his counsel. Such satisfaction will fall under the second part. Of course even when there is such satisfaction of the claim or subject matter of the suit by defendant and the matter falls under the second part, nothing prevents the parties from reducing such satisfaction of the claim/subject matter, into writing and signing the same. The difference between the two parts is this : Where the matter falls under the second part, what is reported is a completed action or settlement out of court putting an end to the dispute, and the resultant decree recording the satisfaction, is not capable of being enforced by levying execution. Where the matter falls under the first part, there is a promise or promises agreed to be performed or executed, and that can be enforced by levying execution. While agreements or compromises falling under the first part, can only be by an instrument or other form of writing signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. The proviso thereto makes it clear that the Court can, if it so desires, direct that such appearance shall be made by the party in person. Rule 4 provides that no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or under a power-of-attorney to make such appointment. Sub-rule (2) of Rule 4 provides that every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. The question whether 'signed by parties' would include signing by the pleader was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorized agents. 39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorized representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorization by vakalatnama, act on behalf of his client .. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. [Emphasis supplied] The above view was reiterated in Jineshwardas v. Jagrani [2003 (11) SCC 372]. Therefore, the words 'by parties' refer not only to parties in person, but their attorney holders or duly authorized pleaders. 19. Let us now turn to the requirement of 'in writing' in Rule 3. In this case as noticed above, the respective statements of plaintiffs' counsel and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5.2001 for the evidence of defendants 4 and 5 with a condition that if they do not lead evidence on that date there evidence will be closed. On 23.5.2001, defendants 4 and 5 did not lead any evidence. On the other hand, the counsel for defendants made a statement on oath that the premises will be vacated on 22.1.2002. Thereafter, counsel for the plaintiff also made a statement agreeing to grant of time till 21.1.2002. There was also agreement that the plaintiffs will be entitled to the payment of only ₹ 4,800/- per month (equivalent to the rent) and nothing more up to 22.1.2002. The effect of it is that the parties have gone to trial on the issues and the only evidence led by defendants is that they will vacate the premises on 22.1.2002. No other evidence being led, the necessary conclusion is that the defendants admitted the plaintiffs' claim and merely sought time to vacate. Therefore, the suit can be said to have been decreed on the basis of evidence and the admissions made by the defendants. In Jineshwardas (supra), such a situation was noticed. In that case, the High Court made an order on a consensus expressed by both the learned counsel at the time of hearing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in which they were made. In that case when the hearing of a Letters Patent Appeal commenced before the High Court, the parties took time to explore the possibility of a settlement. When the hearing was resumed the appellant's father made an offer for settlement which was endorsed by counsel for the appellant also. The respondent who was present also made a statement accepting the offer. Evidently, the said offer and acceptance were not treated as final as the appeal was not disposed of by recording those terms. On the other hand, the said 'proposals' were recorded and the matter adjourned for payment in terms of the offer. When the matter was taken up on the next date of hearing, the respondent stated that he was not agreeable. The High Court directed that the appeal will have to be heard on merits as the respondent was not prepared to abide by the proposed compromise. That order was challenged by the appellant by contending that the matter was settled by a lawful compromise by recording the statements of the appellant's counsel and respondent's counsel, and the respondent could not resile from such compromise and therefore, the High Court ought to have dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e compromise came from the tenant., that no shady action is imputable to respondent 4 and that his conduct has been motivated by the good of his client. 25. The last posting was for reporting the compromise. But, on that date, the Court declined further adjournment and the party being absent and away, the pleader for the appellant had no alternative but to suffer an eviction decree or settle it to the maximum advantage of his party. Similar are the facts here. Neither the second defendant nor her legal representative has attributed any improper motive to second defendant's counsel. The facts go to show nothing further could have been done for the defendants-tenants. All that the counsel for defendants had done was to get the maximum advantage to his clients in the circumstances after dragging on the matter to the extent possible. 24. This appeal is, therefore, liable to be dismissed as being devoid of merit. The consent decree is upheld, though for reasons different from those which weighed with the High Court. The landlords (respondents) will be entitled to seek mesne profits for the period from 22.1.2002 to date of delivery of possession in accordance with law. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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