IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 21603 of 2010(O) ------------------------- AGAINST THE ORDER IN IA 4285/2009 IN OS.528/2008 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): --------------- VALSAN JEROME, S/O.ROCKEY, AGED 50 YEARS, BUSINESS RESIDING AT PANACKAPARAMBIL HOUSE, THEVARA DESOM, ELAMKULAM VILLAGE, KOCHI - 682 013. BY ADV. SMT.SHOBA ANNAMMA EAPEN RESPONDENT(S): --------------- 1. ROCKEY, S/O.ANTHAPPAN, PANACKAPARAMBIL HOUSE, THEVARA DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, KOCHI - 682 013. 2. ANTONY TITUS, S/O.ROCKEY, PANACKAPARAMBIL HOUSE, THEVARA DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, "ROCKS NIVAS", MULAVARIKAL ROAD, KONTHURUTHY, KOCHI - 682 013. 3. JULIET RUBAN @ SHIBU, S/O.ROCKEY, PANACKAPARAMBIL HOUSE, THEVARA DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, "ROCKS NIVAS", MULAVARIKAL ROAD, KONTHURUTHY, KOCHI - 682 013. 4. DOLLY, D/O.ROCKEY, PANACKAPARAMBIL HOUSE, THEVARA DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, NOW RESIDING AT VIDYAVIHAR ROAD, THEVARA, KOCHI - 682 013. 5. SAYAI, D/O.ROCKEY, PANACKAPARAMBIL HOUSE, THEVARA DESOM, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, WPC.21603/2010 2 NOW RESIDING AT THYKOODAM, POONITHURA VILLAGE, KOCHI - 682 019. 6. SYNTHITE INDUSTRIAL CHEMICALS LTD., BANERJI ROAD, KOCHI, REP. BY ITS DIRECTOR GEORGE PAUL KOCHI - 682 031. ADV. SRI.K.S.BABU FOR R1 TO R5 SMT.N.SUDHA FOR R1 TO R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21603/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF JUDGMENT DATED 19.2.2009 IN OS 528/2008 ON THE FILE OF SUB COURT, ERNAKULAM EXT.P2 TRUE COPY OF DECREE DATED 19.2.2009 IN OS 528/2008 ON THE FILE OF SUB COURT, ERNAKULAM EXT.P3 TRUE COPY OF ORDER DATED 21.12.2009 IN IA NO.4285/2009 IN OS 528/2008 ON THE FILE OF SUB COURT, ERNAKULAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.21603 of 2010 -------------------------------------- Dated this the 13th day of September, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P3, order dismissing I.A.No.4285 of 2009 in O.S.No.528 of 2008 of the court of learned Sub Judge, Ernakulam. That is a suit for partition filed by petitioner. The suit was resisted by respondents/defendants. When the case came up for trial in the list on 19.02.2009, respondents were present but petitioner/plaintiff was not present. Counsel for both parties were present. Proof affidavit of petitioner was filed in court. At that time it is said, allegedly under instruction from petitioner his counsel made an endorsement on the plaint that the matter is settled and that decree could be passed in respect of item No.2 of plaint schedule and excluding item No.1. Accordingly, a decree was passed. Later petitioner filed I.A.No.4285 of 2009 in the form of review challenging the compromise decree on the ground that there was no such compromise and the concession made by counsel was without getting instruction from petitioner. That application was opposed by the respondents. On I.A.No.4285 of 2009 petitioner gave evidence as PW1. Learned Sub Judge was not impressed by the evidence of petitioner and dismissed I.A.No.4285 of 2009. That order (Ext.P3) is under challenge. It is contended by learned counsel for petitioner that Ext.P3, order cannot be sustained on the face of evidence given by petitioner as PW1. Learned counsel for respondents contend that there was infact a compromise entered between the parties and on the part of petitioner he conveyed the matter to his counsel WP(C) No.21603/2010 2 over telephone based on which counsel for petitioner made endorsement on the plaint. Learned counsel has placed reliance on the decisions of the Apex Court in Jineshwardas v. Jagrani (AIR 2003 SC 4596) and Amteshwar Anand v. Virender Mohan Singh and others (AIR 2006 SC 151) to support his contention that it is open to the counsel to make endorsement regarding settlement and that it is not absolutely necessary that the parties should joint the compromise. 2. The Supreme Court in Som Dev & others v. Rati Ram & another (AIR 2006 SC 3297) has held that after 01.02.1977 the compromise has to be signed by the parties in compliance of Rule 3 of Order XXIII of Code of Civil Procedure. But in a later decision (See Sneh Gupta v. Devi Sarup and others - 2009 (2) Supreme 77) it was held that compromise signed by the counsel on both sides shall be accepted and that the compromise be signed by parties or by counsel or by both. 3. I am not at the question whether compromise could be signed by the counsel alone, for, in this case the question for decision is whether endorsement made on behalf of petitioner by his counsel was with due instruction. As PW1 petitioner has denied the suggestion that he had given instruction to his counsel to make such an endorsement. On the day counsel made the endorsement petitioner was not present in court. According to the respondents, petitioner had given instruction to his counsel over telephone. But WP(C) No.21603/2010 3 that is not a matter within the knowledge of respondents. Nor has any of the respondents given evidence in that line. Learned Sub Judge found evidence of petitioner as PW1 not tallying with the averments in the affidavit in support of I.A.No.4285 of 2009. But that is not on the crucial question whether petitioner had given instruction to his counsel to make a concession. The evidence given by petitioner as PW1 is that he had not given any instruction. I also stated that on the day counsel for petitioner (in the trial court) made the endorsement regarding settlement, petitioner was admittedly not present in the court. In that situation learned Sub Judge was not correct in rejecting the evidence of PW1 and dismissing I.A.No.4285 of 2009. Resultantly this Writ Petition is allowed. Ext.P3, order on I.A.No.4285 of 2009 in O.S.No.528 of 2008 of the court of learned Sub Judge, Ernakulam is set aside. That application is allowed and the compromise decree is set aside. It will be open to the parties to proceed with trial of the suit. Since the suit is of the year 2008 learned Sub Judge is directed to expedite further proceedings in the suit. Parties shall appear in the trial court on 30.09.2010. THOMAS P.JOSEPH, Judge. cks