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Hari Singh Vs. Ram Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revision Petition No. 129/92
Judge
Reported inAIR1993Raj204; 1993(1)WLC454
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3
AppellantHari Singh
RespondentRam Kumar and ors.
Appellant Advocate Ashok Gaur, Adv.
Respondent Advocate J.K. Singhi,; R.K. Agarwal and; M.L. Gupta, Advs.
DispositionRevision petition allowed
Cases ReferredPutto Lal v. His Highness Maharaja Dhiraj Sumersinghji of Kishengarh
Excerpt:
.....ummed singh chaudhary, advocate. clearly show that the court has power under this rule, where an agreement or compromise denied to decide whether as a fact the alleged agreement or compromise was made and if it is satisfied that it was made to record it. the compromise was never read over to the defendants and they came to know only when it was presented by them to the reader and, therefore, they were perfectly justified in residing from the same and no decree can be passed in terms thereof. the defendants have failed to examine the reader of the court who is alleged to naveread over the compromise to them and whereupon they came to know that they have been cheated and made to sign their compromise deed on the terms which they never wanted to agree. in the present case, the plaintiff..........the compromise. it is against this order that thepresent revision petition has been filed.4. learned counsel for the petitioner has brought to my notice the case in govindarajan v. k.a.n. srinivasa chetty, air 1977 mad 402 : (1977 lab ic (noc) 158) wherein it has been observed that (at page 406 of air):'if a compromise was in fact arrived at though it may be voidable at the instance of one of the parties on the ground of fraud or misrepresentation, when the compromise is filed under order 23, rule 3 with a request to record the same by the opposite party, the court could not go into the question of fraud or undue influence'.5. their lordships of the madras high court while making the above observations placed reliance on its earlier decisions and air 1975 sc 2202.6. learned counsel.....
Judgment:
ORDER

S.N. Bhargava, J.

1. This is a civil revision petition against the order of the learned Munsif and Judicial Magistrate, Kishangarhbas dismissing the application of the petitioner under Order 23, Rule 3 and refusing to record the compromise arrived at between the parties.

2. Plaintiff petitioner had filed the present suit on 27-11-1989 seeking a permanent injunction against the defendant non-petitioners restraining them from interfering with the coming and going in the way and that they should not construct any building so as to obstruct the way and further the obstruction which has been created by digging the foundation should be removed. The defendants filed the written statement on 4-12-1989 controverting the facts alleged by the plaintiff-petitioner and praying that the suit bedismissed. Even before the issues were framed plaintiff petitioner filed an application under Order 23, Rule 3 read with Section 151, C.P.C. on 31-5-1990 praying that the parties had entered into a compromise on 29-11-1989 which was typed by the petition writer and original of which was in the possession of the defendants which they have failed to produce in Court and which is duly signed by the parties, who were identified by Shri Ummed Singh Chaudhary, Advocate. A copy duly signed by the parties which was in his possession was also produced along with the application and it was prayed that the decree be passed in terms of the compromise arrived at between the parties.

3. Reply was filed to this application by the defendants on 10-7-1990 stating that no compromise ever took place between the parties nor they are aware of any compromise dated 29-11-1989. The plaintiff might have prepared so-called fabricated compromise by which the defendants are not bound if any compromise had been arrived at it ought to have been filed in the Court and duly verified. Since the plaintiffs have prepared a fabricated compromise he should be prosecuted for the offence. The learned trial Court recorded the evidence of the parties. Plaintiff examined Shri Ummed Singh Chaudhary, Advocate (P.W. 1) on behalf of the defendants, Shri Hukam Chand (P.W. 2) a petition-writer who had typed the compromise deed. Shri Rati Ram Chaudhary, Advocate (P.W. 3) on behalf of the plaintiff. Plaintiff examined himself as P.W. 4. Whereas the defendants have been examined themselves as Ram Pal as (D.W. 1) and Shri Humam Singh (D.W. 2) and Mularam (D.W. 3) who were mediators and responsible for the compromise between the parties. The learned trial Court after hearing the arguments and considering the record of the case has come to the conclusion that some compromise was arrived at between the parties and they were willing for the compromise but when the defendants produced the compromise before the reader of the Court, the defendants resiled and were not willing to do the compromise nor abide by its conditions and, therefore, he dismissed the application and refused to record the compromise. It is against this order that thepresent revision petition has been filed.

4. Learned counsel for the petitioner has brought to my notice the case in Govindarajan v. K.A.N. Srinivasa Chetty, AIR 1977 Mad 402 : (1977 Lab IC (NOC) 158) wherein it has been observed that (at page 406 of AIR):

'If a compromise was in fact arrived at though it may be voidable at the instance of one of the parties on the ground of fraud or misrepresentation, when the compromise is filed under Order 23, Rule 3 with a request to record the same by the opposite party, the Court could not go into the question of fraud or undue influence'.

5. Their Lordships of the Madras High Court while making the above observations placed reliance on its earlier decisions and AIR 1975 SC 2202.

6. Learned counsel for the petitioner has further placed reliance on Bhaja' Govinda Maikap v. Janaki Dei, AIR 1980 Orissa 108, their Lordships after considering several authorities including AIR 1930 PC 158 has observed as under:

'The words 'where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part' in Order 23, Rule 3, C.P.C. clearly show that the Court has power under this rule, where an agreement or compromise denied to decide whether as a fact the alleged agreement or compromise was made and if it is satisfied that it was made to record it.'

7. Relying on this authority it is very vehemently submitted that since the trial Court has given the finding of fact that the parties did arrive at the compromise, it was incumbent upon the Court to record the same and passed the decree in terms thereof.

8. The learned counsel for the petitioner has further submitted that the authority of Orissa High Court has been approved by the Supreme Court in K. Venkata Seshiah v. Kanduru Ramasubamma (dead) by Lrs., 1991 (1) JT 642.

9. On the other hand the learned counselfor the non-petitioners have submitted that the plaintiff in his plaint itself has mentioned that the parties had come to a compromise on 25-11-1989 in the presence of the villagers but they resiled and again obstructed on the next date i.e. 26-11-1989. He has further submitted that the suit had been filed on 27-11-1989 and if the parties had come to a compromise on 29-11-1989 there is no reason nor there is any explanation as to why the plaintiff moved the application under Order 23, Rule 3 as late as on 31-5-1990.

10. Learned counsel for the non-petitioners have placed reliance on K. Chandrahass Shetty v. Jayaram Sasani, AIR 1970 Mys 209 (V 57 C 54) wherein it has been held that a party can take a defence that the agreement arrived at between the parties has been vitiated by fraud and misrepresentation etc. and the Court has power to go into the merits of such allegations.

It has further been observed as under (at page 211):

'The agreement or compromise by this rule is intended to put an end to the whole litigation by an amicable settlement to the party's own free will and consent; it is not intended either to sow the seeds of fresh litigation or to leave the contentions raised by the parties to a further suit; undoubtedly in the latter event the object of the rule to put an end to the litigation by passing a decree in terms of agreement or compromise would stand frustrated.'

11. Learned counsel for the non-petitioners have placed reliance in B.D. Mohan Rao v. Co-operative Industries Estates (Ltd.), AIR 1975 AP 308 wherein Their Lordships have observed as under (at page 309):

'The recording of compromise is not purely a formal matter, but a question of substance under Order 23, Rule 3 the Court has to find out if there is any agreement between the parties for compromise.'

12. The learned counsel for the non-petitioners have further placed reliance on Smt. Sumitra Devi Agarwalla v. Sm. Sulekaha Kundu, AIR 1976 Cal 196 wherein it has been held that (paras 8, 9, and 10) :

'The term 'lawful agreement' in Order 23, Rule 3 does not include within it an agreement which is vitiated by fraud, undue influence or coercion........ In order to consider whether ornot an agreement has been reached between the parties, the Court will of necessity embark upon an enquiry as to the allegations of a party that his consent to an agreement or his signature on the document containing the terms has been obtained by fraud, undue influence or coercion.'

13. The learned counsel for the non-petitioners have placed reliance in Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC400 where Their Lordships have held that (at page 403):

'Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them.'

14. This authority was relied in Budha Lal v. Sri Ram Chand, AIR 1992 All 360. Relying on these authorities the submission is, that looking to the evidence on record it cannot be held that so-called compromise was agreed upon without undue influence or misrepresentation. The compromise was never read over to the defendants and they came to know only when it was presented by them to the reader and, therefore, they were perfectly justified in residing from the same and no decree can be passed in terms thereof.

15. I have givem my thoughful consideration to the whole matter and I have carefully gone through the various authorities cited at the Bar as also the record of the case. The evidence which has been recorded by the trial Court shows that the parties did enter into a compromise. A copy of the compromise deed which has been filed in the Court is duly signed by the defendants who have been identified by their Advocate. It appears that originally the parties had come to a settlement on persuation of some people. But later on they want to resile from the said agreement. The defendants have failed to examine the reader of the Court who is alleged to naveread over the compromise to them and whereupon they came to know that they have been cheated and made to sign their compromise deed on the terms which they never wanted to agree. Moreover the defendants in their reply to the application under Order 23, Rule 3 has taken up a contrary plea that no compromise was ever arrived at between the parties. They never signed such an agreement and the plaintiff had fabricated the compromise deed. Whereas in evidence the signatures were never denied and their counsel also deposed that he had identified them and they had put their signature in their presence. It is not understandable that the advocate of the defendants will not explain the terms of the compromise to the defendants. The authority of Mysore High Court relied by defendants has disagreed with the view taken by the Division Bench of this Court in Putto Lal v. His Highness Maharaja Dhiraj Sumersinghji of Kishengarh, AIR 1963 Raj 63 wherein it has been held that:--

'if the allegations of fraud or misrepresentation are incidental to an admitted agreement having been arrived at between the parties, it is not within the competence of the Court to enquire into such incidental matter but leave the parties to a separate suit to get an adjudication on the question whether the admitted agreement was voidable.'

16. I am bound by the decision of the Division Bench of this Court and, therefore, the authority of Mysore High Court is of no avail. Even the Calcutta High Court relied upon by the learned counsel for the respondent has referred to the decision of this Court in Putto Lal's case but taken a contrary view. I am in agreement with the view taken by the Division Bench of the Rajasthan High Court and, therefore, this authority is also of no avail. There is no quarrel after the amendment of Order 23, Rule 3 that the compromise should be in writing and signed. In the present case, the plaintiff along with his application had filed a copy of the compromise which is in writing as well as duly signed by the parties who have been identified by their counsel. As such the authorities of the Supreme Court inGurpreet Singh's case and of Allahabad High Court in Budha Lal's case have no relevance. In this view of the matter, I am inclined to allow this revision petition and set aside the order of the trial Court dated 16-11-1991 and direct him to pass a decree in terms of the compromise produced before him by the plaintiff along with his application under Order 23, Rule 3 of C.P.C.

17. Parties are left to bear their own costs. Revision


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