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Girnari Devi and ors. Vs. Gopal Dass and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 187 of 1990
Judge
Reported in(2003)133PLR136
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 3
AppellantGirnari Devi and ors.
RespondentGopal Dass and anr.
Appellant Advocate Amit Jain, Adv.
Respondent Advocate Ajay Jain, Adv. for Respondent No. 1
DispositionPetition dismissed
Cases ReferredByram Pestonji Gariwala v. Union Bank of India
Excerpt:
- .....filed by gopal dass, respondent-tenant herein against the order of his eviction passed by the learned rent controller, rewari, was disposed of in view of the compromise arrived at between the parties according to which the monthly rent of the demised premises wasfixed at rs. 50/- and toward the arrears of rent, it was agreed that the respondent-tenant will pay rs. 3,400/- to the landlord within a period of one month.2. the brief facts of the case are that chhaju ram landlord filed the ejectment applitatlan. against the respondent-tenant on 14.2.1986 for his eviction from the demised premises on the ground of non-payment of rent since 1.1.1981. he alleged that the rate of rent was rs. 80/- per month. pursuant to the notice issued to the respondent-tenant he appeared and contested the.....
Judgment:

Satish Kumar Mittal, J.

1. The legal representative of Chhaju Ram landlord, petitioner herein, have filed the present petition against the order dated 13.09.1989, passed by the Learned Appellate Authority, Narnaul, vide which the appeal filed by Gopal Dass, respondent-tenant herein against the order of his eviction passed by the learned Rent Controller, Rewari, was disposed of in view of the compromise arrived at between the parties according to which the monthly rent of the demised premises wasfixed at Rs. 50/- and toward the arrears of rent, it was agreed that the respondent-tenant will pay Rs. 3,400/- to the landlord within a period of one month.

2. The brief facts of the case are that Chhaju Ram landlord filed the ejectment applitatlan. against the respondent-tenant on 14.2.1986 for his eviction from the demised premises on the ground of non-payment of rent since 1.1.1981. He alleged that the rate of rent was Rs. 80/- per month. Pursuant to the notice issued to the respondent-tenant he appeared and contested the said ejectment application on the ground that the rate of rent was not Rs. 80/- as alleged by the landlord but it was only Rs. 17/- per month. He also denied that he was in arrears of rent, though he admitted that he was liable to pay rent from 1.12.1985 to 30.4.1986. Accordingly, he tendered rent at the rate of Rs. I7/- per month for the aforesaid period on the first date of hearing. During the pendency of this ejectment application , Chhaju Ram landlord expired and his legal representatives who are petitioners herein, were brought on record. After the evidence was led by both the parties the learned Rent Controller allowed the ejectment application and it was held that the monthly rate of rent of the demised premises was Rs. 80/- per month, therefore, the tender made by the respondent-tenant was short and he was ordered to be ejected and directed to hand over possession of the demised premises to the petitioners.

3. Against the above said decision, the respondent-tenant filed an appeal before the learned Appellate Authority, Narnaul on 8.8.1989, When the appeal was being heard on the stay application the parties arrived at comprise. A joint statement of the petitioners as well as the respondent-tenant and their respective counsel was recorded. According to the said compromise, the rate of rent of the demised premises was agreed at Rs. 50/- per month from 1.9.1989. Regarding arrears, it was agreed that the respondent-tenant will pay Rs. 3,400/- to the landlord within a period of one month. The aforesaid compromise was recorded in the shape of statement by the Learned Appellate Authority, which was signed by Ravinder Kumar, who has been impleaded as performa respondent No. 2 in this revision petition, and learned counsel for all the petitioners Shri Gian Chand Sharma, Advocate. It was also signed by the respondent-tenant and his counsel. After the aforesaid compromise the amount of Rs. 3,400/- was deposited by the respondent-tenant in the Treasury within a period of one month in accordance with the terms of the compromise. In view of the aforesaid compromise, the appeal was disposed of vide order dated 13.9.1989 by the Learned Appellate Authority.

4. Against the aforesaid consent order dated 13.9.1989 the petitioners have filed the present revision petition in this Court on 11.12.1989, alleging therein that neither counsel nor Ravinder Kumar (performa respondent No. 2 herein), was authorised to enter into the comprise on their behalf and the compromise which was recorded on the day when only stay application was fixed cannot be sustained in law. It has also been submitted by the petitioners that Sh. Gian Chand Sharma, Advocate, who appeared as their counsel was having no power of attorney on their behalf. The compromise on the basis of which the matter was disposed of is totally contrary to the interest of all the petitioners, out of whom one was minor at the time of entering into the compromise.

5. Shri Amit Jain, Advocate learned counsel for the petitioners, submitted that the aforesaid compromise recorded by the Learned Appellate Authority, in the shape of statements is not valid and in accordance with the provisions contained in Order 23 Rule 3 of the Code of Civil Procedure (hereinafter referred to as 'the Code') as it can neither be said to be in writing nor it was signed by all the parties. He canvassed that the Advocate of the petitioners before the Appellate Authority was neither competent to sign the aforesaid compromise nor he was having any power of attorney to enter into any such compromise. In support of his contention, he put reliance upon a Division Bench decision of this Court in Manohar Lal and Anr. v. Surjan Singh and Anr. (1990-2)98 P.L.R. 479.

6. Opposing the aforesaid contention Shri Ajay Jain, Advocate, learned counsel for the respondent-tenant submitted that the compromise was reduced into writing in the form of statements made by the parties. It was signed by Ravinder Kumar (performa respondent No. 2) and the respondent as well as by the learned counsel for both the parties. He contended that all the petitioners had duly authorised Shri Gian Chand Sharma, Advocate to appear and contest the appeal before the learned Appellate Authority on their behalf. The power of attorney/vakalatnama was duly signed by all the petitioners, wherein the Advocate was also authorised to enter into any compromise on their behalf and if any such compromises entered into by him, they are bound by the same. He further canvassed that it is not necessary that only the parties should sign the compromise, Counsel is also competent to sign the compromise on behalf of the parties and such compromise is valid and binding on the parties. In support of his contention, he put reliance upon the decision of the Hon'ble Supreme in Byram Pestonji Gariwala v. Union Bank of India, A.I.R. 1991 Supreme Court 2234.

7. I have considered the arguments raised by learned counsel for the parties and have perused the record of the same. In my view, there is no force in the submissions made by learned counsel for the petitioners. It is factually incorrect that the petitioners did not execute any power of attorney/Vakalatnama in favour of Shri Gian Chand Sharma, Advocate. The original power of attomey/Vakalatnama is on the record of the learned Appellate Authority at page 53 which has been signed by all the petitioners except Jitender Kumar, who is alleged to be minor at that time and was impleaded through his next guardian his brother Raj Kumar. Therefore, there is no force in the contention of learned counsel for the petitioners that the petitioners did not execute or gave any Vakalatnama in favour of Shri Gian Chand Sharma, Advocate.Another contention that the aforesaid compromise cannot be deemed to be in writing and signed by the parties is also not acceptable. I have also perused the joint statement of the parties recorded in the appeal. In that statement, the terms of compromise have been duly recorded which has been signed by Ravinder Kumar (performa respondent No. 2) and the respondent-tenant Gopal Dass as well as by learned counsel for the parties, who had signed after reading over and accepting the same to be correct. Since this joint statement is in writing, therefore, it cannot be said that the terms of compromise were not in writing. As far as signing the same by the parties is concerned, it has been signed by Ravinder Kumar (performa respondent No. 2) and by Shri Gian Chand Sharma, Advocate, learned counsel for the petitioners in the appeal, who was duly authorised by the power of attorney/Vakalatnama in his favour to enter into compromise. There is no force in the contention of the petitioners that the aforesaid compromise was entered into by their counsel before the learned Appellate Authority without their consent. Though one of the petitioners before the learned Appellate Authority was present, who gave his consent to the compromise, even otherwise their counsel. Shri Gian Chand Sharma, Advocate was also duly authorised and was competent to enter into any compromise on their behalf. The consent of the client is not needed for a matter, which is within the ordinary authority of the counsel. Thus, if in Court, in the absence of the client a compromise or settlement is entered into by counsel whose authority has not been expressly limited the client is bound by such compromise. If the matter is settled in the Court in the presence of the client, his consent will be inferred. A counsel is fully competent to sign the compromise, as has been held by the Apex Court in Byram Pestonji Gariwala's case (supra), as under:-

'The words in writing and signed by the parties inserted in Order 23, Rule3, C.P.C. by the C.P.C. (Amendment) Act, 1976 necessarily mean and include duly authorised representative and Counsel. Thus a compromise in writing and signed by counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject matter of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estopped by judgment.

Counsel's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit. However, a compromise decree may incorporate not only matters falling within the subject matter of the suit, but also other matters which are collateral to it. The position before the amendment in 1976 was that, in respect of the former, the decree was executable but in respect of the latter it was to executable though admissible as judicial evidence of its contents.

After the CPC amendment of 1976 a consent decree is executable in terms thereof even if it comprehends matters falling outside the subject-matter of the suit, but concerning the parties. There is no reason to assume that the legislature intended to curtail the implied authority of counsel engaged in the thick of proceedings in Court, to compromise or agree on matter relating to the parties, even if such matters exceed the subject-matter of the suit. The relationship of counsel and his party or the recognised agent and his principal is a matter for contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy and the legislative intent is expressly made manifest. There is no such declaration of policy or indication of intent in amended Order 23, Rule 3. The legislature has not evinced any intention to change the well recognised and universally acclaimed common law tradition of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the inquisitorial traditions of the Civil law of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant.

So, long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there, is no reason to assume that Parliament has, though not expressly, but impliedly reduced counsel's role or capacity to represent his client as effectively as in the past. On a matter of such vital importance, it is most unlikely that Parliament would have resorted to implied legislative alteration of counsel's capacity or status or effectiveness.

Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject-matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents.Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertaininties and enlargement of the scope of compromise.

To insist upon the party himself personally signing the agreement or compromise woufd often cause undue delay loss and inconvenience, especially in the case of non-resident person. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation of Vakalatnama, act on behalf of his client, Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay inconvenience and needless expenditure, it would have expressly so stated.'

8. In yiew of the aforesaid judgment of the Apex Court, there is no force in the contention raised by learned counsel for the petitioners. The second contention of learned counsel for the petitioners that one of the petitioners was minor when the compromise in question was signed by Ravinder Kumar (performa respondent No. 2), their brother and by their counsel is also without force. Admittedly, the ejectment application was filed by one Chhaju Ram and the petitioners alongwith Ravinder Kumar (performa respondent No. 2) were impleaded as his legal representatives during the pendency of the said petition before the learned Rent Controller. In the appeal, all the petitioners were duly served and the minor petitioner was implead through his brother who engaged Shri Gian Chand Sharma as their counsel. The said compromise was entered into by all the petitioners through their counsel voluntarily by taking the same in the best interest of all of them, including the minor. No application was filed by them before the same authority that the aforesaid compromise was wrongly entered into by their counsel as he was not authorised by them. The petitioners without filing such application, have filed the present revision petition on the ground that they had not authorised their brother Ravinder Kumar and counsel Sh. Gian Chand Sharma to enter into compromise. The petitioners are estopped by their conduct to challenge the compromise in appeal or revision, particularly when they have not filed any application in this regard before the same authority who recorded the compromise.

9. Accordingly, I find no merit in the present revision petition and the same is herebydismissed with no order as to costs.


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