1. This is a civil revision by the plaintiffs against an order of a lower appellate Court, the learned District Judge of Bareilly, ordering that a -certain compromise should be recorded under Order 23, Rule 3 as an adjustment of a certain suit. The facts which have led up to this matter are as follows:
2. In the village of Rathaura the Hindu community brought a representative suit, No. 262 of 1931, for a declaration that their community was entitled to worship and blow conches and ring bells in the village and a decree was granted to them on 9th April 1931. On 20th February 1932 the present suit was brought by seven Muhammadans on behalf of the Muhammadan community, suit No. 443 of 1933, and the suit was registered on the 30th August 1932. This suit was for a declaration of the right of the Muhammadan community to slaughter cows in the village and to sell beef in the village. It was brought against 24 Hindus as representing the Hindu community. During the pendency of this suit the village became disturbed and proceedings were taken against some members of both communities under Section 107, Criminal P.C. In those proceedings five of the present plaintiffs and 14 of the present defendants were arrested and confined in jail, apparently as they could not or did not furnish the necessary security for keeping the peace. While they were still in jail a compromise was arrived at between 'those who appear to have been the leaders' of the two communities, as the learned District Judge says, and that compromise was signed on 13th May 1933 by five of the seven plaintiffs and by 14 of the present defendants. The compromise was to the effect that the Hindus on behalf of their community undertook to abstain from music except to a strictly limited extent, while the Muhammadans on behalf of their community undertook that according to custom cows would not be slaughtered in the village and that meat brought into the village from outside would be kept from view. Ad application was made by the defendants to the Munsif to have this compromise recorded in the civil suit under Order 23, Rule 3. That application was refused by the learned Munsif on two grounds: Firstly, he was not satisfied that the compromise was lawful, and secondly he was not satisfied that the suit had been adjusted between the parties. On appeal to the learned District Judge the decision of the Munsif was reversed on both these points and the compromise was ordered to be recorded as one under which the entire suit was satisfied. The point which has been argued before us is mainly that such a compromise cannot be recorded under Order 23, Rule 3, because the compromise is not one which adjusts the rights of all the parties to the suit, and that if it does adjust the rights of those persons who signed, it does not adjust the rights of those persons who did not sign it. Learned Counsel for the respondent has relied on a certain ruling by a Bench of which one of us was a member reported in Ram Singh v. Subhan Mochi 1929 ALJ 1083. In that case there was an agreement between the two communities dated 7th October 1920 in which it was laid down that the parties agreed that they would not carry out any new procession without applying beforehand to the District Magistrate and obtaining his sanction thereto. It was found as a fact that in the subsequent years 1921, 1922, and 1923 there was no evidence that any 'duldul' procession was taken out with or without the consent of the District Magistrate. The- suit in question was brought on 10th May 1924 asking for a declaration that the plaintiffs were authorised to take out 'duldul' procession. It was held in that ruling that the agreement was intended to be a permanent provision for securing peace between the parties and that having regard to Section 187, Contract Act, it was right to infer the representative character of the signatories to the agreement from the surrounding circumstances and that the agreement was binding on the plaintiffs who brought the suit. Now that case differed from the present case because the agreement in question had been made 3 1/2 years before the suit. I would refer to the following passage in the judgment on page 1086:
We find it quite impossible to believe in the. circumstances of the case that the other Muhammadans of Basra were not fully aware of the meeting to which their leaders had been summoned, and their subsequent conduct in the ensuing years shows that during those years, at any rate, they accepted the representative capacity of the leadens who had signed the agreement. It is manifest that for at least three years no single Muhammadan made any endeavour to repudiate the authority of those leaders.
3. The case therefore is entirely different from the present case, because in the present case it is claimed that an agreement made between certain of the parties on each side in the civil suit without any reference to the civil suit and in which the civil suit is not specifically mentioned should be used as a lawful compromise of the civil suit under Order 23. Rule 3. No question of a compromise under Order 23, Rule 3 was or could be before the Court in the ruling reported in Harbans Singh v. Suresh Datta 1929 ALJ 1082. When I coma to deal, with the present case I am faced with, the fact that the Legislature has laid down a definite procedure in Order 23, Rule 3. Under that rule in my opinion? it is necessary that all the parties on' each side should be parties to an agreement of compromise if that agreement) of compromise is to have the effect of terminating the whole suit. I do not understand how it could be held that the agreement between the five out of, seven plaintiffs on one side and 14 out of 24 defendants on the other side can have the effect of binding the two plaintiffs and the ten defendants who did not join in that agreement. To' meet this difficulty learned Counsel for the respondents argued that the compromise was made by persons acting in a representative capacity for each community and therefore that the two plaintiffs and the ten defendants who did; not join in the compromise should be-bound by the compromise. I do not consider that this argument has any merits-because the provisions of Order 23, Rule 3,. in my opinion clearly require that, all the parties to a suit should join in any compromise which is to terminate the suit. On the other hand I am of opinion that by agreeing to this compromise the five plaintiffs on the one side and the 14 defendants on the other who have signed the compromise are by that act estopped from continuing the suit and that so far as the compromise goes it is valid adjustment of the rights of these particular parties who signed the compromise. There remain however the two plaintiffs on the one side and ten defendants on the other and the two plaintiffs are undoubtedly entitled to continue the suit against the whole 24 defendants. As regards the question of undue influence the Court below has found as a fact that there was no. undue influence and accordingly I have no reason to interfere with that finding of fact. The order which I would make therefore is that this civil revision be allowed and the order of the lower appellate Court be set aside.
4. I concur in the order proposed. I would only like to say that I am not prepared to admit that a few individuals either posing as leaders or recognised by the executive authorities as leaders of a community can by their agreement bind the whole community of which they are members. Without definite proof that they were authorised by all the members of the community without exception to act as their representatives in a compromise it would not be possible to hold that they were legally constituted agents of the entire community so as to bind them by their agreement. Order 1, Rule 8, Civil P.C. and also explanation to Section 11, Civil P.C., indicate a way in which a whole community can be bound by a decree in a representative suit, although all its members are not parties. But I know of no principle of law according to which parties in a criminal case or to a private compromise out of Court can bind their entire community without express authority. At the same time I concede that the subsequent conduct of the community for a sufficiently long period may justify a Court in inferring that the community as a whole acquiesced in their agreement and accepted the compromise which may therefore be used as evidence against the whole community. When a civil suit is pending before a Court brought by a number of plaintiffs the suit cannot be considered to have been adjusted within the meaning of Order 23, Rule 3, merely because some self-constituted leaders of community to which the plaintiffs belong, have entered into some compromise out of Court, so long as it is not definitely established that the plaintiffs who are before the Court actually gave their consent to the compromise. Much less so would the plaintiffs be bound if the so-called leaders were the men arrested and confined in jail who obtained their release-by such a compromise.
5. We set aside the order of the lower appellate Court and we direct that this case be restored and that the trial Court proceed with the trial so far as the rights of the two plaintiffs who did not join in the compromise are concerned as against all the 24 defendants-As regards the remaining 5 plaintiffs and 14 defendants, who signed the compromise, the compromise will be recorded as a lawful adjustment of the suit under Order 23, Rule 3. Costs hitherto incurred in all the Courts will abide the result.