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Bishna and ors. Vs. Musammat Rattani and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana
Decided On
Judge
Reported in13Ind.Cas.92
AppellantBishna and ors.
RespondentMusammat Rattani and ors.
Cases ReferredWazir Begam v. Piyari Begam
Excerpt:
.....of deed,--words giving general powers--ejusdem generis--power to compromise not similar to power to refer to arbitration--agent not signing behalf of principal--one plaintiff signing for the other though not appointed agent. - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken.....1. the parties to this case, as finally arrayed, are bishna, nikka singh, and dhanna singh, sons of samand singh plaintiffs, and musammat ratni, musammat rani and shera, minor defendants. the claim was for a declaration that a certain decree obtained by shera against the two other defendants by collusion should not affect plaintiffs' reversionary rights. the suit having been instituted in december 1907, a compromise in writing was put in on 24th february 1908. bishna did not sign that compromise or appear in court to assent to it, and the first court, therefore, while holding the other two plaintiffs bound by the compromise, found bishna not brand and then on the merits granted him the declaration prayed for. both dhanna singh and bishna had given a special power of attorney for the case.....
Judgment:

1. The parties to this case, as finally arrayed, are Bishna, Nikka Singh, and Dhanna Singh, sons of Samand Singh plaintiffs, and Musammat Ratni, Musammat Rani and Shera, minor defendants. The claim was for a declaration that a certain decree obtained by Shera against the two other defendants by collusion should not affect plaintiffs' reversionary rights. The suit having been instituted in December 1907, a compromise in writing was put in on 24th February 1908. Bishna did not sign that compromise or appear in Court to assent to it, and the first Court, therefore, while holding the other two plaintiffs bound by the compromise, found Bishna not brand and then on the merits granted him the declaration prayed for. Both Dhanna Singh and Bishna had given a special power of attorney for the case to Nikka Singh, but the first Court finally ruled that the powers given did not include authority to compromise, and further that it was more than doubtful whether Nikka Singh purported to set for Bishna in signing the core promise. On appeal, however, the learned Divisional Judge held that. Bishna was bound and, therefore, decreed as to all the plaintiffs on the basis of the compromise.

2. The plaintiff Bisbna has appealed against this finding, and Mr. Shafi on his behalf has had an easy task in showing that the first Court's decision is the correct one. The lower Appellate Court has misunderstood the facts of the case in at least one important particular. It is wholly wrong in writing that 'Nikka distinctly asserted that he was acting as Mukhtar of Bishna and reported that Bishna would not attend Court as he accepted the compromise in full.' In reality, Nikka Singh, when told to produces Bishna on a given date appeared on that date and said that Bishna had not come, that he had told him to come and had warned him that ha (Nikka Singh) was not acting for him, and that now he (Nikka Singh) was acting only for himself. There is thus is this incident nothing to support the idea that Bishna was bound by anything Nikka Singh said or did. Next, the lower Appellate Court is not right in saying that the compromise was entered into by Nikka and Dhanna on behalf of Bishna. In the first place, Dhanna waa not agent for Bishna at all; and secondly, Nikka expressly signed the compromise only for himself, while Dhanna wrote 'for myself and as Mukhtar for the other plaintiff through Nikka Singh' 'Mukhtar.' The other plaintiff, no doubt, meant Bishna., but even so we cannot see that Nikka Singh, the only agent Bishna had, has, judging by the above words, acted as Bishna's agent in executing this compromise, whatever he may have thought he was doing.

3. Thirdly, we cannot agree with the Divisional Judge when he holds that the power-of-attorney powers the power to compromise. It authorizes Nikka Singh to engage a legal practitioner or to prosecute the case himself and to present applications in Court and to refer to arbitration. Then follow the words 'garze ke kull sakhta pardakhta Mukhtar mazhar ko manzur wa kabu hoga.' We think that such words as these must be interpreted in the light of the powers previously specifically set forth, and, in our opinion, the power, to compromise like the power to withdraw the suit or to confess judgment, is not ejusdem, generis with those powers. The Divisional Judge, we think, is wrong in likening, arbitration to compromise because in both the case is settled 'out of Court,' for, is arbitration, the case once instituted, is finally settled by the Court.

4. It. is unnecessary to pursue the argument further, for in Wazir Begam v. Piyari Begam 50 P.R. 1898 we have an authority very much in point. There the wording of the power of attorney was much the same as in the present case, and it was held that the power to compromise had not been conferred. Another indication the same way is, that Nikka Singh himself hardly thought himself empowered to compromise for Bishna.

5. We may note, as an episode in the case with which we are not now concerned, that the first Court first simply dismissed Bishna's claim for default of appearance, and that this Court set aside that order and remanded for re-decision.

6. For the reasons stated above, we accept the appeal, set aside the judgment and decree of the lower Appellate Court and remand the ease to the lower Appellate Court, to dispose of the remaining questions raised in the appeal to the lower Appellate Court.

7. Stamp on appeal refunded. Other costs to be costs in the case.


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