1. The short but important question of law which arises in this second appeal is whether the memo filed before the Court below signed by both the advocates of the parties concerned without being signed by the parties, could be acted upon? The format of the case is : the tenant who is the appellant herein filed R.C.C. 14 of 1979 against the respondent herein for restoration of certain amenities under section 14 of the Rent control Act averring therein that the respondent-landlady is deliberately trying to cut off the electricity connections and so on. That petition is still pending. Thereafter on 8-8-1979 a quite notice under section 106 of the Transfer of property Act was served on the appellant and thereafter the suit was filed for eviction. The suit was decreed and the appeal was preferred which was numbered as A.S. no. 55/1981. The said appeal was directed originally to be posted for final hearing on 18-6-1982. However C.M. P. No. 27/1982 was filed on 25-2-1982 for advancing the case and accordingly the case was advanced to 25-3-1982. Be that as it may, when the matter came up for hearing on 25-3-1982 a memo which by implication a compromise memo signed by the advocates of both the parties concerned, was filed. The compromise memo reads as under:
'It is submitted that the appellant-defendant hereby agrees to vacate the decree schedule building in question and deliver possession of the same to the respondent-plaintiff on or before 30-6-1982. Failing which the respondent can execute the decree for possession and take possession through process of Court. The appellant undertakes to pay all arrears of rent lawfully due by that date (i.e.) 30-6-1982. Hence the appeal may be dismissed without costs'.
On the above memo. The impugned order was made which reads as under:
'Joint memo filed. Appeal dismissed without costs in view of the memo and time granted to appellant for vacating the building till 30-6-1982.'
It is this order that is made a grievance of in this second appeal. Sri T. Mohanarangam, the learned counsel for the appellant, contends that the compromise memo which was filed in the appellate Court purporting to be under Order XXIII, Rule 3 of C.P.C., requires inter alia, the signatures of the parties as well and unless and until the signatures of the parties are initialled, the Court cannot and should not Act upon the same Reliance is placed on a number of decisions In B.D.M. Rao v. Co-op. Industries estates, : AIR1975AP308 , Ramachandra raju, j., held (at pp. 309, 310):
'The recording of compromise is not purely a formal matter, but a question of substance. Under order 23, Rule 3 the Court has to find out if there is any agreement between the parties for compromise. The terms of settlement must be examined with care and caution and see that the parties understood the terms of the compromise and there is no fraud or misrepresentation. A Court making a decree by consent would be performing a judicial and not a ministerial Act. If for any reason, the party cannot appear before the Court or sign in the compromise petition the Court can give permission to the counsel to admit the compromise in Court on behalf of the party, by filing a separate vakalat (Which is usually called a special vakalat) from this party, specifically authorising him either to enter into compromise or admit compromise on his behalf in Court or both. Then after the Court is satisfied it records the compromise. That is what is mentioned in Rule 19 of the civil rules of practice.'
In 1956 Andh LT (SN) 16 it is held:
'In the absence of a specific provision in the vakalat a counsel has no implied authority to enter into a compromise on behalf of his client'.
In Durairaj v. Shanmugham, (1980) 1 Mad LJ 291 it is held:
'The plaintiff filed a suit for a permanent injunction against the defendants restraining them from obstructing the plaintiff from ploughing the land which he had purchased. The trial Court found that the plaintiff was in possession and granted the decree as prayed for. On Appeal by the defendants the lower appellate Court found that the pleadings and documents showed some dispute regarding title to the property and in view of a joint endorsement made by counsel on the appeal grounds before the lower appellate Court: 'the matter may be remanded for amending the plaint, to decide the question of title and adducing further evidence'. Remanded tha matter to the trial Court for fresh disposal. The plaintiff filed an appeal against the order of remand and contended that the consent of the counsel was without authority and the remand order was illegal.
Held. The lower appellate Court has not noticed the amended provisions of the civil procedure code about the manner in which a compromise should be recorded in a pending proceeding. There is no compliance with the provisions of order 23, Rule 3 because the endorsement tantamounts only to a compromise. The endorsement having not been based on a valid compromise entered into between the parties to the proceedings, it was not a consent order, and therefore the order of remand was illegal'.
In Jamilabai v. Shankarlal, : AIR1975SC2202 (both the learned counsel placed reliance) it is held (para 22):
'A pleader (which includes all legal practitioners as indicated in section 2(15), civil procedure code) has the actual though implied, authority of a pleader to Act by way of compromising a case in which he is enagaged even without specific consent from his client, subject undoubtedly to two overriding considerations: (I) he must Act in good faith and for the benefit of his client; otherwise the power fails; (ii) it is purudent and proper to consult his client and take his consent if there is time and opportunity. In my case, if there is my instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground'.
Sri N. V. Ranganadham, the learned counsel for the respondent relied on C. S. Nayakam v. A.N. Menon, : AIR1968Ker213 Wherein the Full Bench of the kerala High Court was concerned with the construction of the provisions enacted under order 3, Rule 4 of C.P.C., and held:
'An advocate in India has inherent authority to enter into a compromise on behalf of his client and the compromise so entered into would be binding on him. The implied authority is an actual authority and not an appendage to his office or dignity added by the Court to the status of the advocate. The implied authority can however always be countermanded by the client. AIR 1930 PC 158 and AIR 1935 PC 119: : AIR1959Mad7 and AIR 1947 Nag 17 (FB), Rel on. O.3, R. 4 civil P.C. does not make any difference. The onlyrequisite it lays down is a written authority of appointment. When that is given it leaves counsel so appointment. When that is given it leaves counsel so appointed free to 'Act' and draws no distinction between various kinds of acting.'
Before analysing the arguments advanced by both the counsel, he provisions enacted in order 23, Rule 3 be set out:
'Order XXII, Rule 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 (1) (in writing and signed by the parties) or where the defendant satisfied 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 (2), (so far as ti relates 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)'.
Apart from the consepectus of the case law cited above, it is quite manifest from the provisions enacted under O. 23, R. 3 and in particular the words added to Rule 3 by virtue of an amendment brought in by the Act 104 of 1976 with effect from 1-2-1977 'in Writing and signed by the parties' any lawful agreement or compromise before it is given effect to by the Court by way of a recording the memo must be initialled by the parties and thereafter decree follows. In this case it is not in dispute that the parties have not signed the compromise memo and therefore the point raised herein should not detain long for answering as it is quite mandatory specifically so when the said words were added by way of an amendment in the year 1977.
Therefore the compromise memo cannot be given effect to and violation breach is quite apparent from the order made under appeal. Henc it cannot be allowed to stand.
2. In the circumstances, the impugned order which is not in compliance with the provisions enacted under 0. 23, R. 3, C.P.C. is set aside and the case is remitted back to the appellate Court directing it to renumber the appeal and hear the case after giving due opportunity and notice to both the parties.
3. The second appeal is accordingly allowed, but there shall be no order as to casts.
4. The lower appellate Court is however, directed to dispose of the appeal as expenditiously as possible, preferably within two months from the date of receipt of this order.