Skip to content


B.D. Mohan Rao Vs. Co-operative Industries Estates (Ltd.) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1719 of 1973
Judge
Reported inAIR1975AP308
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3; Andhra Pradesh Civil Practice Rules - Rule 19;
AppellantB.D. Mohan Rao
RespondentCo-operative Industries Estates (Ltd.)
Appellant AdvocateI. Seshagiri Rao, Adv.
Respondent AdvocateV. Bonthaiah, Adv.
DispositionPetition allowed
Excerpt:
.....civil rules of practice - non appearance of party - counsel acting on behalf of party signing compromise - counsel can only act on authorization of party and after filing special vakalat - held, counsel not authorized by special vakalat and thus order passed by lower court not valid. - - manni ltd, air 1929 oudh 211, wherein it was held that where a consent decree is passed by a court on confession of judgment by a party's pleader, it must be assumed that the court must have satisfied itself before passing of the consent decree that the pleader confessing judgment had authority on behalf of the party to act in the manner in which he did and that the person, challenging the authority, must prove to the contrary by positive evidence, the lower court came to the conclusion that..........set aside the order passed in i. a. no. 890 of 1973 filed in i. a. 133/71. the petitioner herein filed the suit against the respondent which is the co-operative industrial estates limited, sanathnagar (balanagar), hyderabad west, represented by its chairman, for a declaration that the suit scheduled property, which is a site of an extent of 400 sq. yards at sanathnagar (balanagar).hyderabad west, in his property and to restrain the respondent permanently from interfering with his right, title and possession of the site and also to restrain the respondent from making any further construction of any structure thereon and also for a mandatory injunction to pull down and remove the structure already constructed by him thereon. along with the suit, the petitioner filed the i. a. no. 133/71.....
Judgment:

Ramachandra Raju. J.

1. This C. R. P. arises out of suit O. S. No. 14 of 1971 on the file of the Court of Munsif Magistrate, Hyderabad (West). The revision is directed against an order refusing to set aside the order passed in I. A. No. 890 of 1973 filed in I. A. 133/71. The petitioner herein filed the suit against the respondent which is the Co-operative Industrial Estates Limited, Sanathnagar (Balanagar), Hyderabad West, represented by its Chairman, for a declaration that the suit scheduled property, which is a site of an extent of 400 sq. yards at Sanathnagar (Balanagar).

Hyderabad West, in his property and to restrain the respondent permanently from interfering with his right, title and possession of the site and also to restrain the respondent from making any further construction of any structure thereon and also for a mandatory injunction to pull down and remove the structure already constructed by him thereon. Along with the suit, the petitioner filed the I. A. No. 133/71 and a temporary injunction against the respondent was granted in April, 1973. Thereafter, the suit was posted for trial after summer vacation. During the vacation, before the vacation Court, on 10-5-1973, I. A. No. 890/73 was filed, signed by the Advocates of the two parties under Order 39, Rule 4, C.P.C. to amend the temporary injunction order passed in I. A. No. 133/71. After the vacation, the plaintiff filed the present I. A. No. 254/73 against the order in which the C. R. P. is directed to set aside the order in I. A. No. 890/73. As it was refused by the lower court, the petitioner has come forward with this revision petition.

2. The two advocates filed the I. A. No. 890/73 in the following terms:--

'The parties agree that this Hon'ble Court may be pleased to modify the order passed in I. a. No, 133/71 on the following terms and conditions:--

(1) That the defendant or any constituent member of it is permitted to complete the construction of the building, erect machinery, to do other ancillary acts on the said land, plot No. 76, Survey No. 123/B, admeasuring 400 square yards at Balanagar (Sanathnagar, Hyderabad).

(2) On declaration being granted by the Court the plaintiff will be entitled for adequate compensation only and not for possession of the said land.

(3) That the compensation can be recovered from the party who will be found liable to pay ultimately.'

3. This was signed only by the Advocates of the petitioner and the respondent, and the petitioner and the respondent did not sign on it.

4. As per the above terms, the lower court changed the temporary injunction order passed on 19-4-1973 in the I. A. No. 133/71, which was a simple one, namely, that a temporary injunction was granted in respect of the relief prayed for by the petitioner in the suit.

5. The petitioner filed the application I. A. 254/73 alleging that he did not instruct or authorise his counsel to the agreed order, as mentioned in I. A. No. 890/73. It was done without his consent, secretly and behind his back. Hedid not sign on the compromise petition. The entire compromise proceedings areillegal, highly irregular and against all principles of natural justice and that he was neither called upon nor was asked whether he agreed to the compromise terms. The lower court dismissed the application of the petitioner on the groundthat the petitioner has got a remedy to prefer an appeal against the order passed in I. A. No. 890/73 but, without exercising that option, he has chosen the remedy by filing a petition under Section 151, C.P.C. which can be exercised only to undo the effect of fraud practised on Court, and according to the allegation made by the petitioner, the fraud thatwas practised was on the petitioner by his counsel for which there are different remedies open to the petitioner. Following the decision of the Oudh High Court in Paran Kuer v. Manni Ltd, AIR 1929 Oudh 211, wherein it was held that where a consent decree is passed by a court on confession of judgment by a party's pleader, it must be assumed that the court must have satisfied itself before passing of the consent decree that the pleader confessing judgment had authority on behalf of the party to act in the manner in which he did and that the person, challenging the authority, must prove to the contrary by positive evidence, the lower court came to the conclusion that the order dated 10-5-73 in I. A. No. 890/73 is based on proceedings properly and regularly held and that the court has satisfied itself, before passing of the consent order, that the counsel for the petitioner-plaintiff had authority on his client's behalf to act in the manner in which he did. Accordingly, the lower court dismissed the application of the petitioner. It is this dismissal order which is assailed in this revision petition.

6. By a reading of the terms of the application in I. A. No. 890/73, signed only by the counsel of the respective parties without obtaining the signatures of the parties, which was filed for obtaining the consent order, it appears clear that it was not filed merely for obtaining a change in the terms of the temporary injunction order only. As a matter of fact the temporary injunction order was obtained in order to prevent the defendant from making further construction on the suit land during the pendency of the suit. By means of the consent order that temporary injunction order is completely vacated and the defendant is allowed to proceed with further construction of the buildings and erection of the machinery. Besides that the right of the petitioner to get possession of the land was given up. In the suit, the petitioner claimed title to the suitland and also for a mandatory injunction for removal of the construction already made on it by the respondent. By reason of the terms of the compromise filed in I. A. No. 890/73, the petitioner gave up his right to the land and agreed to take compensation only in lieu of it, in case he is found to be entitled to the land in the suit. By means of the compromise, ownership of the land was conferred on the defendant and he was allowed to continue the construction and complete it and also to erect the machinery and to do other ancillary acts. Therefore, in substance, that is a compromise with regard to the subject-matter of the suit itself to some extent, though the right to receive compensation was reserved to the petitioner, in case his title to the land is to be found.

7. Therefore, when the application I. A. 890/73 was filed, the lower court should have proceeded to record the compromise in the manner provided under Order 23, Rule 3 of the Code of Civil Procedure. A compromise decree under Order 23, Rule 3 can be passed only after there has been an order recording the compromise. 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.

8. In this connection, it is necessary to consider the authority of an Advocate to enter into compromise. It is provided under Rule 19 of the Civil Rules of Practice that 'every Vakalat shall unless otherwise ordered by the Court, be in form No. 12 and shall authorise the pleader to appear in all execution and miscellaneous proceedings in the suit or matter subsequent to the final decree or order passed therein.'

9. Form No. 12 is as follows:--

'I do hereby appoint and retain......to appear for me in the above........and to conduct and prosecute or defend the same and all proceedings that may be taken in respect of any application for execution of any decree or order passed therein. I empower my vakil to appear in all miscellaneous proceedings in the above suit or matter till all decrees or orders are fully satisfied or adjusted and to obtain the return of documents and draw any moneys that might be payable to me in the said suit or matter and I do further empower my vakil to accept on my behalf, service of notice of all or any appeals or petitions filed in any court of Appeal. Reference or Revision with regard to the said suit or matter before the disposal of the same in this Honourable Court.'

' 'Accepted' The address for serviceof the said pleader is.........'

10. On a perusal of the terms given in the above form, it is immediately clear that it does not authorise to enter into a compromise with regard to the subject-matter of the litigation for conducting which vakalat is to be given. That is why, normally, in all compromise petitions, besides their counsel, the parties also would sign and the parties also would appear in Court and express their consent to the compromise to the Court directly. It is then, the court re-Cords the compromise as provided under Order 23, Rule 3, C.P.C. 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 his party, sepecifi-cally authorising him either to enter into compromise or admit compromise on his behalf in Court or both. Then, after the court is satisfied about the authorisation given to the counsel under the special Vakalat, when the compromise petition is signed by the counsel mentioning the special power given to him, it records the compromise. That is what is meant by 'otherwise ordered by the Court' as mentioned in Rule 19 of the Civil Rules of Practice, mentioned above. It is true that in the vakalat originally given by the petitioner to his counsel, there is a term authorising him to enter into compromise. But, that is not enough. Special vakalat is necessary and there should be an order of the Court with regard to it empowering the counsel to act as per the special vakalat.

11. Admittedly, no special vakalat from the petitioner was filed by his counsel at the time I. A. No. 890/73 was filed. The counsel for the petitioner merely signed in the application as filing the petition. There is nothing on it by way of any endorsement made by him to indicate that he signed it on behalf of his client in exercise of the authority given to him to compound.

12. Therefore, if there be anything more or not by way of fraud, the consent order was passed by the lower court in I. A. No. 890/73, without following the proper procedure and without the compromise petition being signed by the petitioner or there being any special vakalat from the petitioner authorising thecounsel to enter into the compromise on his behalf. If that order was passed irregularly by the lower court, by some mistake, without following the proper procedure, certainly it can be set aside by it, exercising the inherent powers given under Section 151, C.P.C. for the ends of justice and to prevent abuse of the process of the Court.

13. Accordingly, the Civil Revision Petition is allowed with costs and the consent order passed by the Lower Court in I. A. No. 890/73 is set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //