H.R. Krishnan, J.
1. This is an application in revision by the plaintiff in a suit from the order of the trial Judge summarily refusing to record a compromise without investigating the defendant's allegations thatit had been brought about by misrepresentation. The applicant wants at this stage that the allegations of the; defendant justifying the non-recording of the award should be investigated; whereas the defendant-non-applicant urges that whatever the merits of his allegations, the conduct of the plaintiff itself shows that he had tacitly repudiated the compromise. The question is of considerable theoretical interest though ill practice it might arise only very rarely.
A party to a compromise has, after entering into it, continued prosecuting his suit, leading evidence, even without mentioning the compromise; can be at a later stage fall back on it and invite the Court to record it, or is he deemed by his own conduct to have repudiated it and is as such not entitled later on to invoke it in his own favour
2. The facts of the case are the following : On account of some old transactions the plaintiff-applicant brought a suit in 1949 for the realisation of Rs. 756/- and interest from the defendant. This suit had already dragged on for about seven years when on 4-5-1956 the parties entered into a compromise, the defendant agreeing thereby to pay Rs. 1200/- in annual instalments of Rs. 200/- each, the first to begin on Chait Sudi Punam Samvat year 2014 (April 1957); there was, in addition a provision for a high rate of interest on failure to pay instalments, this to run from the very beginning. The compromise was signed on 4-5-1956 but for several dates after it, the plaintiff appeared in the Court, adduced his evidence and conducted the suit on contest.
Later on, on 27-7-1956, he filed the petition and invited the Court under Order 23, Rule 3 to record the compromise. The defendant filed a rejoinder-petition asserting that the terms of the compromise were unconscionable and there was a misrepresentation and urged accordingly that it should not be recorded. The Court, without calling upon the parties to adduce evidence on the genuineness of the agreement, straightway refused to record it, as it was not satisfied that there had been a real compromise. From this order the plaintiff has come here in revision.
3. The plaintiff has pointed out with ample citations that once a compromise had been entered into, it is not for the Court to look into the rights and wrongs of the parties but to record it unless there is evidence of fraud, misrepresentation, coercion and the like. If the Court is inclined to consider the last, it is bound in duty to hold an enquiry after giving opportunity to the party who relics upon the compromises. Among the reported cases, Rameshar v. Bahulal, AIR 1946 Pat 97 lays down:
'When the matter has been compromised during the pendency of the suit, the compromise by the litigant is good consideration irrespective of the rights and wrongs of the parties. It may be that tile suit was based on a false claim but compromises are effected irrespective of the merits of the claim of either side'.
In Harbans Singh v. Bawa Singh. AIR 1952 Cal 73 it was held that a lawful agreement excluded not only these, the objection or consideration for which are unlawful but all agreements which on the face of them are void; but merely because one party urges fraud, undue influence or coercion, the compromise cannot be thrown away without a regularinvestigation. In Mst. Kalpa v. Sita Ram, (S) AIR 1955 All 187, it was held; When parties made allegation with regard to the making of the compromise the Court will have to came to a finding as to whether there, had been a compromise and if the agreement or the adjustment was lawful. Such a finding cannot be reached without enquiry with opportunity to the other party. Similarly in Mohammad Hasnain v. Yusuf Husain, AIR 1956 All 121, it was held:
'It was not open to the Court to go into the merits of the case without first deciding whether there has been a lawful adjustment and if so, what were the terms of the adjustment'.
A similar view was taken in Misrilal v. Sobhachand, AIR 1956 Bom 569. In the instant case the learned Civil Judge has pointed certain elements in the compromise petition which do look harsh. On the other hand, this is part of a complete adjustment, and the mere fact of their apparent severity, does not make the agreement unlawful. At all events an enquiry was necessary ill regard to the allegation of misrepresentation.
4. If there was nothing else in this case, the plaintiff would have been entitled to an order directing the Civil Judge to hold a summary enquiry into the allegation made by the defendant, and to come to a finding whether the agreement has been vitiated by fraud, misrepresentation or coercion, at the same time, without trying to make out a separate agreement which it considers fairer to the parties.
5. But there is one special feature in this case which alone might have justified the trial Court in refusing to record the compromise. Towards the end of paragraph 6 of its order the learned Civil Judge touches upon it but he bas not brought out this aspect of the case clearly and independently of other matters. The compromise was signed by the parties on 4-5-1936. Inter alia it provided that suit should not be proceeded with any further and that it should be disposed of in terms of this agreement.
In other words, the appropriate and expected course for the plaintiff was straightway to apprise the Court of the compromise and invite it to pass a decree in its terms. Surprisingly enough, this is precisely what he does not do. He just puts the compromise petition in his pocket and continues the prosecution of the suit, examines himself and other witnesses; this goes on for four dates. Certainly the defendant is also acquiescing and does not on his part invite the Court to record the compromise.
But that is of no consequence here, because the defendant is not asking us to record the compromise, and seems to be perfectly satisfied that it should be thrown away. In effect, the plaintiff breaks the main term of the agreement that he should not proceed with the suit. It is difficult to avoid the impression that, having obtained the compromise petition, the plaintiff still went on conducting the suit on merits, in the hope that the matters might so shape as to lead to results more favourable to him, than given by the compromise.
If, however, things turned out to be less favourable he hopes to fall back on the compromise. This is just what he does some months later. After examining his witnesses and seeing the effect of theircross-examination, he now feels that he might as well have the compromise recorded. The question is not whether his calculations were really wise or prudent, but whether such a person who keeps the compromise ay a sort of stay by and tries his luck by continuing the suit can be allowed to come baek to it at a later stage.
In my opinion he cannot. Once a compromise is arrived at, he should not proceed with the suit. He should ask the Court to record the compromise and satisfy it that the agreement is genuine. If he, however, changes his mind and the other party also acquiesces, the compromise is washed out, and the suit should proceed on merits. But he cannot later on, when his hopes do not materialise, come back to the compromise. His conduct amounts to a repudiation of the compromise; and it is no less a repudiation because it is tacit.
The moment the plaintiff began to continue prosecuting the suit, it was open to the defendant either to acquiesce in it, and thereby co-operate in the sabotage of the compromise, or invite the Court to record it and stop the plaintiff in his further progress with the suit. The defendant chose the former. Thus apart from the allegations made by the defendant, in his petition, which would no doubt call for an enquiry, the conduct of the plaintiff himself disentitles him to ask that the compromise should be recorded. Looked at that way, the order of the lower Court was justified.
6. The application in revision is dismissed.Costs to the defendant-non-applicant and pleaders'fee according to rules.