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Athappa Gounder Alias Poosari Gounder and ors. Vs. Periasami Gounder - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported inAIR1956Mad344; (1956)2MLJ94
AppellantAthappa Gounder Alias Poosari Gounder and ors.
RespondentPeriasami Gounder
Excerpt:
.....compromise at all, and will amount only to inchoate negotiations which failed to take effect as a completed compromise. the argument is unconvincing. like a balanced judicial officer, he must have only 'suggested' that the sum of rs. he knew the limitation on his power, and the possibility of allegations being made against him in courts of appeal and revision, or in a writ, and wanted to be on the safe side, and not to impose anything on the parties, but to leave everything to their sweet will and pleasure. it is well settled now that only the presiding judge is the normal authority to speak to the happenings in court, and that statements of advocates, third parties, spectators, etc. no court in this country has got a right to hold as true and completed a compromise like this, which is..........curious. the respondent in both these c.r.ps., one periaswami gounden, filed two suits in the district munsif's court, coimbatore. one was o.s. no. 865 of 1952, district munsif's court, coimbatore, which, later on, became, on transfer, o.s. no. 48 of 1954, district munsif court, gobichettipalayam, and again on re-transfer, o.s. no. 318 of 1954, district munsif's court, coimbatore. there were five defendants, athappa goundar, vellingiri goundan, velayuda goundar, sellakumaraswami goundar and valliammal. periaswami prayed in that suit for a declaration of the right of himself and hi& lessees to take their carts along the cart-track, a.b.c.d. marked in the plaint, and to walk along a foot-path marked a.b.s.r. in the plaint, and to restrain the defendants, by a permanent injunction,.....
Judgment:

Panchapakesa Ayyar, J.

1. These C.R.Ps. raise a very important question of law, viz., whether a compromise can be recorded by Court, and a decree passed in terms thereof, when it does not fall under one of three known categories, namely, (1) where all parties involved are knowingly and willingly parties to an oral adjustment or the compromise, the terms of which they know and have accepted; (2) where the advocates or lawyers appearing for the parties, exercising the powers given to them under their vakalats, adjust the matter and enter into a compromise, whether the parties have agreed or not; and (3) where the terms of the compromise have been embodied in a document presented to Court, signed by the parties and their advocates, and the Court is asked, by a separate petition, to pass a decree in terms of the compromise, permitting, as beneficial, minors, lunatics, etc., if any, to enter into it.

2. The facts in this case are rather curious. The respondent in both these C.R.Ps., one Periaswami Gounden, filed two suits in the District Munsif's Court, Coimbatore. One was O.S. No. 865 of 1952, District Munsif's Court, Coimbatore, which, later on, became, on transfer, O.S. No. 48 of 1954, District Munsif Court, Gobichettipalayam, and again on re-transfer, O.S. No. 318 of 1954, District Munsif's Court, Coimbatore. There were five defendants, Athappa Goundar, Vellingiri Goundan, Velayuda Goundar, Sellakumaraswami Goundar and Valliammal. Periaswami prayed in that suit for a declaration of the right of himself and hi& lessees to take their carts along the cart-track, A.B.C.D. marked in the plaint, and to walk along a foot-path marked A.B.S.R. in the plaint, and to restrain the defendants, by a permanent injunction, from interfering with him and the lessees, when using the cart-track and the footpath, and for costs. He filed O.S. No. 867 of 1952, (which later on, became O.S. No. 49 of 1954, District Munsif Court, Gobichettipalayam and still later, O.S. No. 317 of 1954, District Munsif Court, Coimbatore) for a declaration that he and his lessees, were entitled to use the cart-tracks A.B.C.D.E.F. and G.H.L.K. in the plan attached to the plaint, and for restraining the defendants by a permanent injunction from interfering with him and his lessees in such use, and for costs. In that suit there were three defendants, viz., Nachimuthu Goundan, Sellappa Goundan alias Ponnuswami Goundan, and Palani Goundan alias Chinnaswami Goundan. Suits for declaration of rights of disputed cart-path and foot-path, are generally hotly contested, and these two suits were not exceptions to the rule.

3. On 25th January, 1954, the counsel on both sides began negotiations for settlement, and both these old suits were at their request adjourned to 28th January 1954, for reporting settlement. No settlement was arrived at on 28th January, 1954 and the suits were adjourned at their request to 29th January, 1954, for settlement. The plaintiff, Periaswami Gounden, was offering to have O.S. No. 867 of 1952 (O.S. No. 317 of 1954) dismissed, and the right claimed to the cart-track and foot-path therein, given up, in case the right to the cart-track and the foot-path in O.S. No. 865 of 1952 (O.S. No. 318 of 1954) was allowed; he was also willing to pay money compensation for the land covered by the cart-track and footpath involved in O.S. No. 865 of 1952. The defendants in O.S. No. 865 of 1952 (O.S. No. 318 of 1954) appear to have insisted on an equal extent of land being given to them somewhere else, instead of mere money compensation. The peasant's-love for land is well known. The plaintiff, Periaswami Gounden, was not willing to give exchange land, and was willing to give only money compensation. On 29th January, 1954, the notes paper of the then District Munsif (said to be ME SECTION Srinivasan) showed that it was reported to him that take matter had been settled, which would normally mean that it was completely settled, leaving nothing more to be settled. But it appeared} later on, that an important matted was left unsettled, as if a tuft was left sticking and unresolved, in that alleged cropped head of settlement. Mr. Ratnaswami Iyer appeared for the defendants in O.S. No. 865 of 1952, and O.S. No. 867 of 1952, and Mr. Srinivasa Rao appeared for the plaintiff in both the suits. These gentlemen were evidently trying hard to effect a settlement. On 29th January, 1954, they represented to the then District Munsif, according to what they stated before the lower appellate Court (they said nothing before the trial Court about this), that both sides were anxious to settle the matter and were anxious that the District Munsif should settle the amount of compensation in respect of the cart-track and path-way in O.S. No. 865 of 1952. The then District Munsif is said to have 'suggested', to use the words used in the lower appellate Court's judgment, a sum of Rs. 400 for the 35 cents or so of the land involved. There is nothing, even in the statement of counsel before the lower appellate Court, to show that the District Munsif was made an arbitrator by both sides, and that both sides agreed to abide by whatever amount he fixed, or that he accepted such a position, or fixed the sum of Rs. 400 as an irrevocable award given by such an arbitrator. He seems to have simply suggested Rs. 400 for consideration by both sides, leaving it free to them, obviously to accept it or not. The records do not show that the parties (as distinguished from their counsel) represented anything to the learned District Munsif, or even that all the 5 defendants in that suit, and the 3 defendants in the other suit, were present, that day, in Court, or took part in the request, or even in the negotiations. The two learned Counsel on both sides, obviously anxious to get rid of these cantankerous disputes, and to effect an amicable settlement, seem to have requested the District Munisf to suggest a figure. After his 'suggestion' they went from the Court and had a draft compromise, Exhibit A-I, prepared. Mr. Srinivasa Rao, the learned Counsel for the plaintiff, is said to have drafted, it, and Mr. Ratnaswami Iyer, the learned Counsel for the defendants, seems to have made some important corrections in it, though of course, it is difficult to come to a definite conclusion about all this, as neither counsel was examined, and neither gave any statement or memo, as to what exactly transpired. Some of the corrections made in the draft compromise are important, and cannot be said to be merely clerical corrections, or grammatical corrections or corrections made with an idea to improve the English, though that last idea has disappeared from this country for some years past. These corrections indicate further discussions and negotiations and consequent amendments to Mr. Srinivasa Rao's draft. In the compromise it was stated that the plaintiff had paid Rs. 400 for the cart-track, and foot-path, given up by the defendants for use as cartetrack and foot-path in O.S. No. 865 of 1952, and also that he was also going to get his other suit, O.S. No. 867 of 1952, dismissed without costs. It was clear from the evidence, and was indeed admitted, that the Rs. 400 had not been paid by them, and was deposited in Court only on 1st February, 1954, i.e., some three days latter in the I.A's. put in for recording the alleged compromise. Mr. Ratnaswami Iyer got the corrected draft typed by a job-typist, P.W. 2, paying him the charges therefor. But the first defendant flatly refused to sign in the compromise, and wanted land to be given to him, instead of money compensation. Defendants 2 and 3, who were evidently under the influence of the first defendant, also refused to sign the compromise; Defendants 4 and 5 followed suit and also refused to sign the compromise. So neither the plaintiff nor the defendant signed it. Mr. Ratnaswami Iyer and Mr. Srinivasa Rao did not also sign the compromise on their own responsibility, under category No. 2 mentioned at the beginning, and asked the Court to pass a decree in terms of the compromise they had agreed to, as advocates, taking full responsibility for the compromise, under the power given to them in the vakalats, even though the defendants had not consented. Nor will category No. 3, mentioned at the beginning, apply, because, the compromise was not signed by the parties and the advocates, and presented in Court, or admitted by the parties and advocates to be a correct record of the comprise arrived at between them, and decrees in terms of the compromise prayed for. So, only category No. 1 remains, namely whether there was a completed oral agreement between all the parties, regarding the terms in the draft compromise, and the fair copy of the alleged compromise, Exhibits A-1 and A-2.

4. Periaswami Gounden, the plaintiff, filed two I.A's., I.A. Nos. 571 of 1954 and 665 of 1954, under Order 23, Rule 3, Civil Procedure Code, in he District Munsif's Court, Coimbatore, for passing decrees in the two suits in terms of the compromise District Munsif, who had succeeded Mr. Srinivasan, the original district Munsif who had 'suggested' the Rs. 400, heard these two I.A.'s. exhaustively, discussed the entire evidence, and came to the conclusion that there had been no concluded compromise between all the parties, and that no decree could be therefore passed in terms of the alleged compromise, and dismissed both the I.A's., on 6th August, 1954, but directed all the parties to bear their own cost, in the circumstances and posted the suits for trial and disposal to 30th August, 1954, and asked both the parties to get ready with the evidence on the adjourned date. The plaintiff filed C.M.As. Nos. 82 and 83 of 1954, in Court of the District Judge of Coimbatore. The learned district Judge was of opinion that there was completed compromise embodied in Exhibits A-1 and A-2, and so set aside the orders of the District Munsif, dismissing the I.A's., and allowed the appeals with costs in both, and gave Periaswami Gounden costs also in I.A. No. 665 of 1954, relation to O.S. No. 317 of 1954 (O.S. No. 867 of 1952) was dismissed, and O.S. 318 of 1954 (O.S. No. 865 of 1952) decreed. Of Course, if these two C.R.P's. are allowed the two suits will have to be restored to file and disposed of.

5. I have perused the entire record, and heard the learned Counsel on both sides, and have not the least doubt that there was no completed compromise at all, and that the learned District Judge's construction of what took place between the two advocates and the then District Munsif, who fixed Rs. 400 as compensation, on 29th January, 1954, was erroneous, and that the evidence on record would not suffice to prove any completed compromise, and that his orders in appeal have worked a substantial injustice to the defendants in O.S. No. 865 of 1952. Mr. K.S. Desikan, for the petitioners in the C.R.P's. and Mr. S. Ramachandra Iyer, for the plaintiff-respondent, Periaswami Gounden, argued the case fully, as a very important point is involved. Both of them admitted before me that, in all their experience, they had not come across such a compromise (without the signature of the parties or advocates in the alleged compromise, and with a wrong recital of payment as already made as was sought to be proved and recorded in these two I.A's. But, Mr. Ramachandra Iyer stated that this was only because advocates use their wisdom and prudence, and generally do not ask for recording such compromises. But what about Courts? They have to be cautions in such matters, where cantankerous parties are involved, and where they are empowered to record a compromise and pass decrees under Order 23, Rule 3, Civil Procedure Code, only when the compromise is proved to their satisfaction (the trial Courts are meant primarily) to be rue and complete, and the matter, to have been really adjusted. Usually, the compromise is embodied, with all the terms, in a document signed by all the parties and their advocates, and a petition is filed to record the compromise and pass a decree in terms of the compromise, and the Judge and the compromise and pass a decree in terms of the compromise, and the Jude and the compromise read out in open Court, and the parties admit the terms to be correct, and then the compromise is record, and a decree is passed in terms of the compromise. That method is not only the safest, but is also the very best. If inchoate negotiations are treated as adjustments there will be no end to the peril to the parties who negotiate, Courts, which have got paid judges, have usually to decide the suits themselves, whatever the trouble, unless they clearly come to the conclusion that the parties have knowingly and willingly entered into a compromise and adjusted the matter, or at least their advocates have done so, taking the responsibility on themselves, by virtue of the power given to them in their vakalats. Legally, no doubt, there is no bar to the parties agreeing to a compromise and an adjustment even orally, and proving it, but it is obvious that proof in such cases will be very difficult, especially when the parties contesting it appear almost immediately before the Court and deny it, and oppose a decree in terms of the compromise, as here. Very few Courts will be disposed to act on such an alleged oral compromise between the parties and pass decrees m terms thereof, in such cases. Though it is legally possible that a suit is compromised or adjusted orally between all the parties to it, willingly and knowingly and that some of the parties may go back on the adjustment the very next moment and deny having agreed at all, very few Courts will be disposed to believe that story of the adjustment and its repudiation unless it is proved beyond all reasonable possibility of doubt. It is obvious that the trial Court judgment rejecting an alleged oral compromise should never be disturbed unless it is palpably perverse, which it certainly was not in this case.

6. This evidence disclosed only inconclusive talks between the parties and their own vakils, and similar talks between the vakils on both sides and the then District Munsif. There were no talks between the parties inter se. There is no proof that all the terms of Exhibit A-1 or A-2 were read out, or made known, to all the defendants in O.S. No. 865 of 1952, and that all the defendants knowingly and willingly approved of them. Sometimes, the compromise may be so simple that there is no need to embody it in writing as when the plaintiff says that he will have his suit dismissed on the defendants' paying a fixed amount to him. These things can be easily remembered. But more complicated terms cannot be remembered so easily. In this case, there are the following inherent difficulties in believing the alleged completed compromise or adjustment:

1. As already observed, there were only inconclusive three-sided talks, but the triangular talks did not result in any complete compromise. The then District Munsif never recorded any compromise on 29th January, 1954, either when he 'suggested' Rs. 400 as compensation, or before, or after.

2. All the parties involved in the alleged compromise were not proved to have been present, and to have been parties to it. Even P.W. 1, Periaswami Gounden, had to admit that he could not say whether all the defendants in both the suits agreed to the compromise, and he admitted that all the parties were not called to the Court, and that the Court had not asked them any questions, and that, immediately after the compromise, he was told that some of the defendants had agreed to it, but that some had not, and that some of the defendants alone were present when the draft was written by vakil Mr. Ratnaswmi Iyer. The defendants were not of one family; nor had they joint interest in the lands. All had to agree, and the compensation amount of Rs. 400, if agreed to by them, had to be divided among them. The non-completion of a compromise will disentitle the alleged compromise to be recorded by Court, and a decree passed in the terms thereof. It is something like an egg having a hole in it through which the contents have escaped, though 99/100 of the egg is still intact. It is like a chain which has only one link missing but that is a vital link essential to effect the connection. Mr. Bhavani Shankar held that it was not proved to his satisfaction that the suits had been adjusted by a concluded compromise, and, so, dismissed the I.A's. So, the alleged compromise, under category No. 1, mentioned above, relied on by Mr. Ramachandra Iyer, collapsed, and very rightly. Mr. Ramachandra Iyer conceded that categories Nos. 2 and 3 would not apply to this case. The cart-track and path-way in O.S. No. 865 of 1952 were one and indivisible. So, if some of the defendants interested in them were not parties to the compromise, the whole compromise would collapse.

3. The District Munsif who presided over the Court on 29th January, 1954, (the office says it was Mr. S. Srinivasan) is stated, even by the lower appellate Court, to have merely 'suggested' the sum of Rs. 400 as the proper compensation whereas Mr. Ramachandra Iyer's case is that he was appointed by both the parties as a kind of sole arbitrator to fix finally the amount of compensation, both parties agreeing to abide by whatever figure he gave out. Mr. Ramachandra Iyer's contention is not supported by anything on record, or even by any observation made by the lower appellate Court in its judgment. A 'suggestion' has got a definite meaning in the English language. It means that it can be accepted or rejected, and that it is not irrevocable or binding as a decision. Mr. Srinivasan, the District Munsif, who is said to have fixed the amount of Rs. 400 as sole arbitrator, was not examined to prove it; nor did Mr. Ratnaswami Iyer or Mr. Sfinivasa Rao state before the lower appellate Court that the District Munsif fixed the amount irrevocably as arbitrator, or give a statement to that effect anywhere. Nor was there any evidence to show that the defendants had accepted the figure of Rs. 400 suggested by the District Munsif. The defendants were obviously still insisting on land being given to them in exchange. It was because of that that there were so many adjournments and protracted negotiations and that they finally refused to agree. In the absence of agreement regarding this important matter, the alleged compromise will be no compromise at all, and will amount only to inchoate negotiations which failed to take effect as a completed compromise. There was no adjustment under Order 23, Rule 3, Civil Procedure Code.

4. It is another curious feature in this case that Mr. Ratnaswarni Iyer and Mr. Srinivasa Rao, the learned Counsel on both sides, did not make any statement before either Mr. Srinivasan, the District Munsif, who 'suggested' the sum of Rs. 400 or before Mr. Bhavani Shankar, who heard and dismissed the two I.A's. They made a statement before the lower appellate Court, which statement too was vague, and inconclusive, and useless for the plaintiff. They represented to the lower appellate Court that on 29th January, 1954, both sides informed the District Munsif (Mr. Srinivasan is meant) that they were anxious that he should settle the amount of compensation in respect of the cart-track and the path-way, that the plaintiff was to use, and that the Court suggested that a sum of Rs. 400 be fixed as compensation. Mr. Ramachandra Iyer urged that the word 'fixed' should be taken to modify the word 'suggested' and that the District Munsif (Mr. Srinivasan) should be held to have acted as sole arbitrator with irrevocable powers regarding the award. The argument is unconvincing. Mr. Srinivasan was not examined to prove it. I don't think he ever accepted the position of sole arbitrator. Like a balanced judicial officer, he must have only 'suggested' that the sum of Rs. 400 be fixed. He knew the limitation on his power, and the possibility of allegations being made against him in Courts of appeal and revision, or in a writ, and wanted to be on the safe side, and not to impose anything on the parties, but to leave everything to their sweet will and pleasure. Indeed, the parties did not ask him to do anything; only the advocates asked him to ' suggest' a figure, and he 'suggested' Rs. 400. A suggestion for marriage will never amount to a marriage; nor will a suggestion of Rs. 400 amount to fixing Rs. 400 as an irrevocable award by the District Munsif. The fact seems to be that both the learned advocates wanted to effect an amicable settlement, and that Mr. Ratnaswamy Iyer thought that he would be able to induce the defendants in O.S. No. 865 of 1952 to agree to accept Rs. 400 'suggested' by the District Munsif, giving up their contention that land in exchange for the land covered by the cart-track and path-way should be given to them. But the leopard rarely changes its spots, and cantankerous litigants rarely change their stands. So, after Mr. Ratnaswami Iyer had taken all the trouble of effecting the corrections to Exhibit A-1, and getting Exhibit A-1 fair-typed as Exhibit A-2, and had taken it to the first defendant, the one defendant proved to have been certainly present that day, the first defendant refused flatly to sign it, obviously because he wanted land, and not money, and the other defendants, later on, lined up with him. Mr. Ratnaswami Iyer was unable to break this phalanx of opposition, and dropped all idea of signing in the compromise, and presenting it in Court. Mr. Srinivasa Rao also seems to have been of the same view. That is why the learned Counsel on both sides did not sign the compromise and did not represent to the learned District Munsif, Mr. Srinivasan, or Mr. Bhavani Shankar, that there was a completed compromise or adjustment. The lower appellate Court acted on certain inferences and deductions, whereas what was wanted was proof of a completed adjustment or compromise. It is well settled now that only the presiding judge is the normal authority to speak to the happenings in Court, and that statements of advocates, third parties, spectators, etc., will be of lesser value, let alone logical inferences and deduction by appellate Courts. The then District Munsif, Mr. Srinivasan, left nothing on record about any completed compromise having been effected before him, or by him. This case shows the danger of judicial officers even suggesting compromise figures to cantankerous parties.

7. It was urged by Mr. Ramachandra Iyer, that, on 29th January, 1954, Mr. Srinivasan, the then District Munsif, wrote on the notes paper that the matter was reported to him, by the advocates on both sides, to have been settled, and, so it must have been settled. But, as already observed, a tuft remained to be settled, viz., the compensation amount, and this protruding tuft was never properly settled, and the compromise never got completed and the matter adjusted. Why was the Rs. 400 not paid? Obviously because the other side (the defendants) had not agreed to accept money. So the compromise never got completed.

8. Mr. Ramachandra Iyer then urged that, even if I held that the lower appellate Court was wrong in its conclusion that there was a completed compromise, I should not interfere with it in revision, as it is a finding of fact. There are three fallacies in this argument. The first is that it is not a question of fact, alone, but a question of law also. No Court in this country has got a right to hold as true and completed a compromise like this, which is not true and completed, and work injustice on the defendants, especially in appeal, upsetting the order of the trial Court which held that no adjustment or compromise was proved to its satisfaction under Order 23, Rule 3, Civil Procedure Code. For the learned District Judge to hold it to be a completed compromise and adjustment, by erroneous deductions and inferences as to what happened in the trial Court on 29th January, 1954, and reverse the decision of the trial Court, will amount in the circumstances, to an error in law. Secondly, it will also amount to a wrong decision based on no evidence, and to a failure of justice, and, therefore, to an absence of jurisdiction to declare a completed compromise and adjustment when there was none, on such allegations. Thirdly, there are some decisions of the Privy Council and the Supreme Court and High Courts which hold that the same sanctity will not attach to a finding of fact by one Court, reversing a finding of fact by another Court. In other words, concurrent findings on facts by both the Courts below have been held to be stronger than a finding of fact by one Court displacing another finding of fact by another Court, especially where the first finding of fact is supported by convincing reasons, and the second finding is based on palpably unsound reasons.

9. In the end, therefore, both these Civil Revision Petitions are allowed and the orders of the learned District Judge set aside, and the orders of the District Munsif restored, and both the I.A's. dismissed, and the decrees in both the suits set aside, and both the suits directed to be restored to file, and posted expeditiously and disposed of as early as possible. In the circumstances, I direct all the parties to bear their own costs throughout.


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