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Nadirsha Hirji Baria and ors. Vs. Niranjankumar @ Nireshkumar Dharamchand Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1983)1GLR774
AppellantNadirsha Hirji Baria and ors.
RespondentNiranjankumar @ Nireshkumar Dharamchand Shah and ors.
Cases ReferredJagmohandas v. Jamnadas
Excerpt:
- - ) navsari, on march 14, 1980, praying for declaration that they had a right of way over the land specified therein and the way was being used for bringing light vehicles like matador, tempo, hand-lorry, etc. 1 and 4 were personally present in the court and they personally admitted their signatures as well as the terms of the compromise......for the defendants had such an authority. but his contention is that since the compromise was not signed by defendants nos. 2 and 3 themselves, it should not have been taken into consideration as being not in conformity with the provisions of order 23 rule 3 of the code of civil procedure. the stress is placed on the words 'agreement or compromise in writing and signed by parties' occurring in the said rule. it is argued that 'signed by parties' means, the parties themselves. to support the contention, reliance is placed on the words 'except where otherwise expressly provided by any law for the time being in force' occurring in rule 1 of order 3 of c.p. code and it is argued that rule 3 of order 23 of c.p. code expressly provides that the compromise should be signed by parties and.....
Judgment:

A.P. Ravani, J.

1. In this revision applications following three questions have been raised:

1. Whether the decree passed on the basis of consent terms admittedly signed by the advocate but not by the party personally can be enfored at law?

2. Can the decree, as it stands, be executed or is it merely a declaratory decree which does not confer any right whatsoever on the plaintiffs?

3. On admitted facts, whether any contravention of the decree passed by the Court is committed by the defendants?

2. A suit being Civil Suit No. 66 of 1980 was filed by the opponents herein (original plaintiffs) in the court of Civil Judge (S.D.) Navsari, on March 14, 1980, praying for declaration that they had a right of way over the land specified therein and the way was being used for bringing light vehicles like Matador, Tempo, hand-lorry, etc. and further prayed that the defendants be restrained from causing obstruction in their right of way. The petitioners - original defendants appeared in the suit, filed their written statement and resisted the same. Ultimately on May 2 1980 consent terms were filed in the court. The defendants agreed that in the right of enjoyment of the passage by the plaintiffs they will not create any obstruction whatsoever. In terms of the compromise, consent decree was passed by the court. It appears that some time thereafter the defendants started making construction of a wall in the passage so as to block some portion of the passage with the result that the light vehicles could not be brought in. Therefore, the plaintiffs filed an Execution Application No. 38 of 1980 on September 1, 1980 and prayed that the construction be removed and the defendants be restrained from obstructing the plaintiffs in enjoying the fruits of the decree. The defendants appeared and objected to the execution of the decree. The trial court after hearing the parties rejected the objections and allowed the Execution Application by its judgment and order dated January 30 1982. The petitioners-original defendants have preferred this revision application against the aforesaid judgment and order passed by the trial Court.

3. It is undisputed that two of the plaintiffs (plaintiffs Nos. 2 and 3) and two of the defendants (defendants Nos. 2 and 3) themselves have not signed the compromise. However, it is an admitted position that their respective advocates have signed the compromise. The plaintiffs have not made any grievance on this score. But it is argued by the Counsel for the petitioners-original defendants that since the compromise is not signed by two of the defendants personally, it cannot be said to be in conformity with the provisions of Order 23 Rule 3 of the Code of Civil Procedure, and hence the consent decree passed by the trial court on the basis of such a compromise cannot be executed. This contention be now examined.

4. In the trial court, Mr. N.A. Desai, advocate, appeared for the defendants. He has signed the compromise terms on behalf of defendants Nos. 2 and 3. Just above his signature the following words have been written:

Specially authorised to negotiate, enter into and admit this compromise on behalf of defendants No. 2 and 3.

Sd. N.A. Desai.

for defendants Nos. 2 and 3.

Over and above this signature, advocate Mr. N.A. Desai has put his signature separately also describing him as advocate for the defendants. It may be mentioned that defendants Nos. 1 and 4 were personally present in the court and they personally admitted their signatures as well as the terms of the compromise. The advocate for the defendants Mr. N.A. Desai also admitted the compromise for and on behalf of defendants Nos. 2 and 3. Thus far there is no dispute with regard to facts. Hence a question was put to the Counsel for the petitioners as to whether the advocate of the defendants had an authority to enter into a compromise and admit the same or not? It was conceded that the advocate for the defendants had such an authority. But his contention is that since the compromise was not signed by defendants Nos. 2 and 3 themselves, it should not have been taken into consideration as being not in conformity with the provisions of Order 23 Rule 3 of the Code of Civil Procedure. The stress is placed on the words 'agreement or compromise in writing and signed by parties' occurring in the said rule. It is argued that 'signed by parties' means, the parties themselves. To support the contention, reliance is placed on the words 'except where otherwise expressly provided by any law for the time being in force' occurring in Rule 1 of Order 3 of C.P. Code and it is argued that Rule 3 of Order 23 of C.P. Code expressly provides that the compromise should be signed by parties and therefore, compromise if signed by an advocate of the parties will not be valid. In other words, according to the petitioners, unless the compromise is signed by parties themselves, it cannot be acted upon.

5. The contention so raised is hyper technical. It may be noted that Rule 3 of Order 23 of C.P. Code did not contain words 'in writing and signed by parties' prior to its amendment by Act No. 104 of 1976. The necessity to introduce the words 'in writing and signed by parties' arose with a view to avoid setting up of oral agreements or compromise to delay the progress of the suit. This is clear from the objects and reasons set out in Sub-clause (iii) of Clause 77 of the Amending Act No. 104 of 1976. Thus, by this amendment what was sought to be achieved was that the agreement or the compromise should be in writing and oral agreements were to be ignored so that delay in further proceedings of the suit can be minimised.

6. Now the question is, what is the meaning to be given to the words 'signed by parties'? Would it not include even the duly engaged advocates and the recognised agents of the parties? If the Legislature intended that the agreements should be signed by the parties themselves in person, the Legislature would have introduced the words 'signed by parties themselves personally. 'When the language of the statute is clear, it is not permissible for the court to add those words and then read the provision of law.

7. In court proceedings the advocate duly engaged and appointed by a party represents that party. Under the provisions of Order 3 Rule 1 of C.P. Code, a lawyer can act on behalf of his client except where otherwise expressly provided by any law for the time being in force. Simply because the provision is made in Rule 3 of Order 23 of C.P. Code that the agreement or compromise is required to be in writing and signed by parties, it cannot be said that the authority of the advocate appearing for the party is restricted. No provision either of C.P. Code or of any other law has been pointed out to me showing that the advocate has no authority to sign a compromise on behalf of his client. In this case on facts it is not even contended that the advocates who singed the compromise had no authority to sign on behalf of his client.

8. This contention may be examined from another angle also. A lawful agreement may be entered into by any person who is competent to enter into an agreement. Such a person may enter into an agreement either himself or through his power of attorney or through his recognised agent. If a power of attorney holder duly constituted enters into a lawful agreement, it cannot be said that as the agreement is not signed by the party himself, there is no lawful agreement whatsoever. The only question required to be examined in such cases would be whether the power of attorney holder (or the recognised agent as the case may be) had the due authority to sign for and on behalf of his principal. If the power of attorney holder or the agent had due authority, then in that case, the agreement would be lawful. At least on that score the legality of the agreement cannot be assailed. In this case, it is not even contended that the advocate had no authority. On the contrary it is conceded that the advocate had authority to enter into a compromise. It is also not contended that the advocate has exceeded his authority or there was any misrepresentation or fraud. There were in all four defendants. Two of them were present in court. They themselves have signed the compromise. Simply because two of the defendants were absent and on their behalf, the advocate under authority and specially authorised to enter into and admit the compromise has put his signature, it cannot be said that the agreement arrived at was not lawful as being contrary to the provisions of Order 23 Rule 3 of C.P. Code.

9. The counsel for the petitioners sought to rely upon an unreported decision of this court rendered by my learned Brother Mr. Justice N.H. Bhatt, in Civil Revision Application No. 572 of 1980 decided on July 19, 1980. In that case an award given by the arbitrator was filed in the court and it was prayed that in terms of the award a decree be passed. No question arose in that case as to whether a compromise signed by an advocate of the party (and not signed by the party himself) would be valid or not. Therefore, the decision cited by the learned Counsel for the petitioners has no bearing whatsoever on the question involved in the present case.

10. The question may be examined from yet another angle. What is the prejudice caused to the petitioner-defendants, as the compromise is signed by their advocate? Nothing whatsoever. At least the counsel for the petitioners has not shown that they were in any manner prejudiced. Then why this contention? The answer is obvious - to serve the demon of technicality only; it has no other purpose. In this case, even technically it is not permissible for the courts to add some words in the provision of law and then read it. Hence the contention is rejected.

11. The counsel for the petitioners next contended that the decree sought to be executed was merely a declaratory decree and no right whatsoever was conferred upon the plaintiffs which can be enforced and executed. For this purpose the Counsel relied upon the following portion of the decree.

Relying on these two lines, it was sought to be urged that the plaintiffs have not obtained any right whatsoever which can be executed by the decree. The answer is simple. For the correct interpretation of the decree, the controversy between the parties to the suit should be taken into consideration. Further the decree as a whole has to be read. The plaintiffs filed suit for declaration that they had a right of way and also for injunction that the defendants be restrained from causing obstruction in their right of way. In this suit the compromise was arrived at. There, in terms, the defendant agreed that in the right of enjoyment of the passage by the plaintiffs, the defendants were not to create any obstruction whatsoever. It is so stated in para 4 of the consent decree. Thus reading the decree in its entirety it is clear that the defendants agreed not to create any obstruction whatsoever in the right of passage given to the plaintiffs under the compromise arrived at between the parties. Therefore, the contention the decree is not executable and it is merely a declaratory decree also fails.

12. Lastly, it was urged that by making construction in a portion of the passage in question, the petitioner defendants have not committed any contravention of the terms of the compromise. According to the petitioners, what they were required to do under the decree was that they were to keep the passage open only at the two ends and not near the godown or press of the plaintiffs. The contention requires to be stated only for the purpose of being rejected. If a particular width of the passage is required to be kept at the terminal ends of the passage, it cannot be restricted by the defendants. If this meaning is not given then at the two ends the particular width of the passage may be kept and after a distance of about 5 or 10 feet, it may be considerably truncated so as to make the movement of vehicles impossible. Thus the right of passage would be nullified even before the plaintiffs reach at their destination.

Further it was urged that the decree should be so construed that the defendants should not be required to give wider road than what is contemplated in the decree. The order passed by the trial court is very clear on this point. The petitioners-original defendants are required to remove the wall put up by them so that the light vehicles such as matador, tempo, etc. can pass through the road in question. Thus the defendants are required to remove the, wall and keep the road open so that the light vehicles can pass through.

13. It may be pointed out that in this case the defendants are cinema theatre owners. The plaintiff is a petty shop owner doing his business of hardware in his shop opposite to the cinema theatre. The defendants entered into a lawful agreement, allowed the decree to be passed in terms of the compromise. Now the defendants are trying to raise technical contentions and avoid the decree. In my opinion, the trial court has not committed any illegality or impropriety whatsoever in passing the order. However, even if any impropriety or illegality had been pointed out, would have refrained myself from exercising the jurisdiction under Section 115 of the C.P. Code. As laid down by this Court in the case of Jagmohandas v. Jamnadas reported in 6 G.L.R. 49, High Court will exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which will not further the ends of justice.

Rule is discharged with no order as to costs. However, the interim relief shall stand vacated on January 15, 1983.


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