IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 RFA.No. 354 of 2010() --------------------- OS.83/1999 of PRINCIPAL SUB COURT,KOCHI .................... APPELLANT/5TH DEFENDANT: --------------------------------- K.B. JACOB, AGED 81 YEARS, S/O. LATE K.J. BURLEIGH, RESIDING AT 16/475, POWER HOUSE ROAD, KAZHUTHUMUTTU, THOPPUMPADY, KOCHI TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.P.J.JOSEPH (PALLIPARAMBIL) SRI.ABDUL JALEEL.A RESPONDENT(S)/PLAINTIFFS 4 TO 6/2 TO 3 AND 6TH DEFENDANTS: --------------- 1. NAJMA BARNETO @ NAJMA WAHAB, AGED 57 YEARS, RESIDING AT 1198, 2ND FLOOR, KAMPAMMA LAY OUT, OIL MILL ROAD, LINGARAJAPURAM, BANGALORE-560084. 2. NIRMAL J WAHAB, AGED 55, YEARS, RESIDING AT 1198, 2ND FLOOR, KAMPAMMA LAY OUT, OIL MILL ROAD, LINGARAJAPURAM, BANGALORE-560084. 3. NIMMY RAMANADAN, W/O. L.V. RAMANADAN, AGED 58 YEARS, 756 RUA PEROLA, NUAA, HIGIENOPLIS JADIRA, SP. 06642/140, BRAZIL. 4. K.S. SANTHOSH BURLEIGH, S/O. K.J. BURLEIGH, AGED 60 YEARS, RESIDING AT CC X/1290, SOUTH THAMARAPARAMBU, FORT KOCHI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. RFA.354/2010 5. K.S. PREKASH BURLEIGH, S/O. K.J. BURLEIGH, AGED 62 YEARS, RESIDING AT CC X/1290, SOUTH THAMARAPARAMBU, FORT KOCHI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. 6. THOMAS BURLEIGH, S/O. K.J. BURLEIGH, AGED 75 YEARS, RESIDING AT CC X/1291, SOUTH THAMARAPARAMBU, FORT KOCHI VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT. PLAINTIFFS 1 TO 3 AND DEFENDANTS 1 AND 4 WERE DIED AND THEIR LEGAL HEIRS WERE ALREADY IMPLEADED IN O.S. DURING THE PENDENCY OF THE SUIT. ADV. SMT.S.KARTHIKA FOR R1-3 SRI.M.S.UNNIKRISHNAN FOR R1-3 SRI.M.R.ANISON FOR R1-3 SMT.K.P.GEETHA MANI FOR R1-3 SRI.P.N.APPUKUTTAN FOR R1-3 SMT.P.A.RINUSA FOR R1-3 SMT.SEEMANTHINI THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A.NO.2029/2010 IN R.F.A.NO.354/2010 DISMISSED. 23.07.2010 SD/- THOTTATHIL B. RADHAKRISHNAN, JUDGE SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE C.R. THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- R.F.A.NO.354 OF 2010 () ----------------------------------- Dated this the 23rd day of July, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. The 5th defendant in a suit for recovery of possession on the strength of title is the appellant. When the suit came for trial in the special list on 2.3.2009, the parties to the suit filed a compromise petition as I.A.No.324 of 2009, all of them and their respective Advocates signing that. 2. Thereafter, the appealing 5th defendant filed I.A.No.375 of 2009 on 11.3.2009 seeking that the compromise arrived at between the parties to the suit and stated in the compromise petition dated 2.3.2009 “be not recorded”. The plea in the affidavit accompanying that petition was that the 5th defendant RFA.NO.354/10 2 had entered into the compromise after he was made to believe that both the permanent structures stated to be standing in plaint A schedule property, going by the Commissioner's report, would be allotted to the defendants, however that, the compromise petition proceeds as if there is only one permanent structure in plaint A schedule property. He further pleaded that the compromise arrived at between the parties was that both the permanent structures in plaint A schedule, as stated in the Commissioner's report, would be alloted to the defendants including him and it was only later that he understood the honey trap laid by the other parties. He, accordingly, alleged that the compromise petition dated 2.3.2009 is vitiated by mistake, misunderstanding, fraud and misrepresentation. He further alleged that the factum and validity of that compromise petition is seriously disputed and the said compromise petition does not have any legal binding effect. He pleaded that his signature in the compromise petition cannot be said to be exercised out of his free will as, if he was aware of the mischief in the present petition, he RFA.NO.354/10 3 would not have affixed his signature in the said petition. He stated in his affidavit that “at the time of signing the compromise petition also, I had pointed out the said fact. I was made to believe that a correction petition will be filed to correct the error which happened while mentioning the permanent structure which are to be included in the plaint A schedule property which was be allotted to the defendants including me”. 3. We notice that the aforesaid affidavit of the 5th defendant is sworn to on 11.3.2009 before Adv.Sri.K.V.Binod and the petition I.A.No.375 of 2009 is also signed by Adv.Sri.K.V.Binod, who was appearing for him and had also signed the compromise petition as his Advocate. We find that thereafter there is a change in engagement and Adv.Sri.K.V.Binod did not continue to appear for the 5th defendant. 4. Objections were filed by the contesting plaintiffs and other defendants. All of them stood by the compromise. RFA.NO.354/10 4 5. The appealing 5th defendant gave evidence before the court below. 6. On the basis of the materials, the court below concluded that there is no reason to refuse to record the compromise. Consequently, the suit has been decreed recording the compromise. This appeal is filed against that. In effect, the compromise decree is under challenge including the decision of the court below to record the compromise. 7. The learned counsel for the appellant argued that the compromise not having recorded till the appellant's application, essentially resiling from the compromise, was filed, it was the bounden duty of the court below, in terms of Order XXIII Rule 3 of the Code of Civil Procedure, to enquire as to the sustainability of the compromise, including as to whether it is vitiated by fraud, misrepresentation, mistake of fact etc. He further argued that before a compromise is RFA.NO.354/10 5 recorded by the court, it does not get any statutory flair, but remains only as a proposal of the parties that could get the sanction of court by the order recording the compromise and therefore, until then, it remains only as something that can be recalled or withdrawn. In support, the decision of this Court in Gopala Menon v. Sivarama Menon (1967 KLT 790) is relied on. Proceeding further, it is argued that the situation being so, the 5th defendant/appellant could withdraw out of the compromise. In support of this, the learned counsel referred to the decision of the Apex Court in Shiv Prasad v. Durga Prasad and another (AIR 1975 SC 957), and the High Court decisions, Thomas George v. Skariah Joseph and another (AIR 1973 Kerala 149) and Prema Chanda Barik v. Prafulla Kumar Mohanty (AIR 1988 Orissa 33). Relying on the decision of the Apex Court in Kishun @ Ram Kishun (dead) through L.Rs. v. Bihari (D) by L.Rs. (AIR 2005 SC 3799), it was further argued that when compromise set up by one party is disputed by the other, the court adjudicating on that issue cannot pass a decree in RFA.NO.354/10 6 terms of the compromise, but has to go into the merits of the rival contentions in the suit. 8. Per contra, the learned senior counsel appearing for the plaintiffs referred to the judgment of the Apex Court in Manish Mohan Sharma & Others v. Ram Bahadur Thakur Ltd. & Others (AIR 2006 SC 1690) to state that it has been repeatedly emphasised in several decisions that family settlements are governed by a special equity and are to be enforced if honestly made and the parties to a litigation should not be normally permitted to wriggle out of such agreements. She stated that in the backdrop of the facts of the case in hand, the compromise is the essentially a family settlement to be honoured. Relying on Ranganayakamma and another v. K.S.Prakash (Dead) by Lrs. and Others ((2008) 15 SCC 673), it was argued that no allegation of fraud having been specifically pleaded in the instant case, the 5th defendant cannot get rid of the lawful compromise entered into by him. It is pointed out that unless fraud is pleaded and proved, the compromise stands. Referring to RFA.NO.354/10 7 the provisions of Rule 3 of Order XXIII of the CPC, it is pointed out that the scope of enquiry for recording of compromise has to be understood in terms of that provision including the provisos thereto, and not beyond. 9. At the outset, we need to notice that the appellant, aged around 80 years, is an educated person. He is a doctor, a gynaecologist by profession. We cannot but treat the appellant as a knowledgable person. The compromise, as also, all his affidavit's are in English language. In fact, he has no case that he did not know the contents of the compromise. Even in the affidavit accompanying I.A.No.375 of 2009, it is his specific statement that he knew about the error in the compromise even when he signed it and that he had mentioned about it even at that time. Now, when he turns round to challenge the compromise, we find that there is no statement by him that he did not have the aid of his counsel to advise even in relation to the compromise petition. He has no complaint other than the so called mistake or misrepresentation of which, going by his affidavit RFA.NO.354/10 8 dated 11.3.2009, he knew even while he signed the compromise. 10. With the aforesaid factual situation, we advert to the provisions of law falling for consideration. Rule 3 of Order XXIII of the CPC provides, inter alia, that when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties…............, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith ................ Explanation to Rule 3 of Order XXIII of the CPC states that an agreement or compromise which is void or voidable shall not be deemed to be lawful within the meaning of Rule 3. Therefore, on the court being satisfied that the compromise is lawful in terms of the Explanation to Rule 3, it is obliged to order such compromise to be recorded and to pass a decree in accordance therewith. RFA.NO.354/10 9 11. A compromise or settlement between the parties is nothing, but an agreement. This is clearly discernible even from the provisions of Rule 3 of Order XXIII of the CPC, in particular, the Explanation thereto. Section 22 of the Contract Act advices that a contract is not voidable because it was caused by one of the parties to it being under a mistake as to a matter of fact. 12. The proviso to Rule 3 enjoins that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question. This means that the scope of enqiry into any such allegation by a party to the compromise, is limited to an enquiry as to whether an adjustment or satisfaction has or has not been arrived at. It is only the existence of the alleged adjustment or satisfaction that is required to be enquired into in the event of a question being raised in that regard. It is not within the province of that adjudication to decide on any other issue, though a specific plea that the agreement or settlement is not lawful RFA.NO.354/10 10 would also be considered by the court since satisfaction of the Court that the compromise is lawful, is necessary to record the compromise. This does not, however, mean that the Court would decide on issues which do not find room within the frame of Order XXIII Rule 3 of CPC. We get further support for this view, in the legislative command in the later part of the proviso to Rule 3 that when such a question is raised, the court shall decide that question; but no adjournment shall be granted even for that purpose unless the court thinks it fit to grant such adjournment for reasons to be recorded. The legislative intention is, therefore, that even if such an issue is raised, it should be expeditiously considered because the first among the legislative commands in Rule 3 is that the court shall order such lawful agreement, compromise or satisfaction to be recorded and shall pass decree in terms thereof. 13. In Gopala Menon's case (supra), this Court was dealing with a case where a guardian before arriving at a settlement or compromise, ought to have obtained the prior RFA.NO.354/10 11 permission of the court or whether such permission could be granted contemporaneous with the consideration of the compromise petition. That decision does not apply in favour of the appellant in the case in hand. 14. Shiv Prasad's case (supra) was decided by the Apex Court with reference to Rules 89 and 90 of Order XXI of the CPC and it was laid down that withdrawal of one may be necessary to sustain the other. We mention this only because that decision was cited. In fact, after the 1976 amendments to the CPC, this principle has got incorporated into that Code itself, in Order XXI of CPC. 15. Thomas George's case (supra) and Prema Chanda's case (supra) are cases which dealt with Order XXIII Rule 1 of the CPC, the provision that applies to withdrawal of suits. One among them also dealt with the question whether a withdrawal application could itself be withdrawn before the suit is taken cognizance of, by the court. Hence, those precedents do not apply to the facts of the case in hand. RFA.NO.354/10 12 16. Going to Kishun's case (supra), as clearly discernible from paragraph 3 of that judgment, the Apex Court was dealing with a case where what was to put in court along with an application under Order XXIII Rule 3 of CPC was an alleged joint statement filed by the parties before the Tehsil, and the court was called upon to adjudicate as to whether that can be treated as a compromise, settlement or adjustment between the parties. The court negatived that contention. It was laid down by the Apex Court that it was not a compromise filed in the suit in between the parties and therefore, the court was obliged to adjudicate the suit on merits. We do not find that the said decision has any application to the facts of the case in hand. 17. In Ranganayakamma's case (supra), the Apex Court considered the binding nature of a prior compromise decree. It was laid down therein, among other issues of law, that a compromise decree cannot be defeated in a subsequent suit unless it is pleaded and proved to have been RFA.NO.354/10 13 vitiated by fraud. The bounden under the compromise decree cannot otherwise get rid of the same. 18. In the case in hand, we are concerned with a stage which is anterior to the passing of the decree. Therefore, what is called for is not an adjudication as to whether a decree had been fraudulently obtained. The question here is as to whether the court ought to act upon and record the compromise filed by the parties. As already noted, going by the terms of Rule 3 of Order XXIII of the CPC, when a lawful agreement or compromise signed by the parties are before court and it is proved to the satisfaction of the court that the suit has been adjusted wholly or in part by that lawful agreement or compromise, it is the bounden duty of the court to order such agreement, compromise or satisfaction to be recorded. The appellant does not have a case that the compromise petition was not signed by all the parties. It was signed by all the parties' counsel also. There is no controversy on that. The said compromise is one by which there is an adjustment or settlement between the parties in RFA.NO.354/10 14 relation to various items of immovable properties dealt with in that compromise and which are the subject matter in the suit. There is no plea that it is an unlawful agreement or that it is a compromise which is not lawful. When we say that, we are not ignoring the plea of the appellant that the said compromise is vitiated by misrepresentation or mistake of fact and, therefore, voidable. 19. Here, the appellant's plea that the compromise is vitiated by misrepresentation, was not accepted by the court below. We have read the evidence of the appellant as PW1 in the proceedings before the court below. The plea of fraud, we would take, is just namesake and is nothing but a different mode of expressing the alleged misrepresentation. Fraud as a vitiating element has to be specifically pleaded, including by stating materials particulars. There is no such plea or legal evidence of fraud. Not only that, the best witness of the situation was Adv.Sri.K.V.Binod, who was appearing for the appealing 5th defendant, not only in the compromise petition, but also in I.A.No.375 of 2009, the 5th RFA.NO.354/10 15 defendant's application, dismissed as per the impugned order. We would profitably recall the pronouncement of the Apex Court in Jineshwardas v. Jagrani (AIR 2003 SC 4596) rendered making reference to the law laid in its earlier judgments and ultimately, categorically, laying down the authority of an Advocate appearing for a party, in re, the compromise. Adv.Sri.K.V.Binod was not only not examined, but disengaged after drafting and filing I.A.No.375 of 2009, the application of the 5th defendant denouncing the compromise. 20. With the aforesaid, we would now proceed to consider whether on facts and circumstances, there is any reason to hold that there was any misrepresentation or any other element that would have vitiated the compromise and whether injustice has to be done to the appellant by the impugned decree by recording the compromise. 21. Though the appellant professes to challenge the compromise by stating that the understanding was that both RFA.NO.354/10 16 the permanent structures in plaint A schedule will be allotted to the defendants including him, we find that even the other defendants have opposed his application filed challenging the compromise. The appellant, who is only the 5th defendant, does not get the support, even of the other defendants, though he states that the defendants reside in the building in the plaint A schedule property. 22. The genealogical tree of the parties and the historical facts being referred to would show that the plaintiffs and defendants had a common ancestor and there was a partition through court sometime in 1951. The defendants including the 5th defendant were residing in a building in plaint A schedule property. The parties, though bound by the partition decree, the plaintiffs had to ultimately sue for recovery of possession on the basis of that partition decree. That is the suit in hand, which was instituted in 1999. Ultimately, when the matter came up for trial in the special list on 2.3.2009, the compromise petition was filed. By that time, none among those originally on the array of RFA.NO.354/10 17 parties survived in this world. At one time, we felt amused to hear the learned counsel on both sides making references to “family settlement”, “family tree”, “family arrangement” and such words and phrases when the very concept of “family” stood totally distorted, at least for the appellant, and the relationship, whatever left, was only to scramble for the wealth. 23. Be that as it may, a look at the facts of the case would show that as per the final decree dated 25.6.1951 in O.S.No.28 of 1945 of the Sub Court, Kochi, the suit properties were allotted to the share of the predecessors of the plaintiffs. The three plaintiffs shifted their residence from the building in the plaint schedule property and, later, there was an agreement to sell one of the buildings [the bungalow in A schedule property] to the 1st defendant, who was thereafter residing there. However, he did not pay the balance sale consideration, and the sale did not take place. Ultimately, on the strength of their title, the plaintiffs sued for recovery of possession and for damages. The three defendants filed written statement jointly admitting the RFA.NO.354/10 18 relationship between the parties and the agreement for purchase. They, however, pleaded that the entire sale consideration was paid and the defendants were put in possession and that it was not a case of trespass. We refer to these facts to state that what has been ultimately given even in terms of the compromise is the bungalow in plaint A schedule property and the land appurtenant thereto. The antecedent title of the plaintiffs not being in dispute and the defendants having not obtained any specific performance of the contract for sale, all that they could have ultimately brokered for, is only for what has been granted under the compromise. It is obviously, therefore, that the other defendants, reasonably sail with the plaintiffs even in opposing the 5th defendant's application filed against the compromise. Adverting to the Commissioner's report and the compromise, it can be seen that the plaint A and B schedule properties had no clear demarcating boundary between them and the Commissioner had identified that the segregation between those two items run through the eastern portion of the building with door No.C.C.10/1290 RFA.NO.354/10 19 standing in plaint A schedule property. That is the bungalow where the defendants were residing. It is that building which is allotted to the defendants in terms of the compromise. Perusing the Commissioner's report, we find that there is another structure which is an outhouse with two or three bed rooms and yet another structure with wooden planks, cement foundation etc. which was probably used as a granary. The bargain between the parties as reflected in the compromise is that the defendants would keep the bungalow bearing door No.C.C.10/1290, which was the family house, and the plaintiffs would take the balance. We look into those aspects also, to rule out any possibility of injustice to the appealing 5th defendant. 24. For the aforesaid reasons, we find no merit in this appeal and would treat this appeal as merely one filed by the additional fifth defendant against the interest of all other parties to the compromise, including the other defendants. Therefore, we are inclined to dismiss the appeal with costs of Rs.1 lakh payable to the plaintiffs, which will be a charge on RFA.NO.354/10 20 the share of the 5th defendant that he would get in terms of the compromise. 25. On dictation of the judgment as aforesaid, the learned counsel for the appellant made a very persuasive plea that the order of costs, as imposed above, may be excluded. We have heard the learned counsel of the appellant and also the senior counsel for the plaintiffs on this issue as well. We direct that the order of costs fixed above will stand reduced to Rs.50,000/- on the same terms as to charge on property. We further record the magnanimous offer made by the plaintiffs through their appearing counsel that they would not enforce the charge regarding costs or execute this order of costs if the portion of the land and building due to the plaintiffs in terms of the compromise is surrendered within a period of one month from now. This will be on condition that an affidavit undertaking to vacate within one month is filed by the appellant before the court below on or before 29.7.2010, to which date, the delivery proceedings stands posted now. If RFA.NO.354/10 21 such affidavit is filed, the court below will adjourn the delivery to 24.8.2010 and such order would by itself be the notice thereof. It is further clarified that if such affidavit is not filed, delivery will be forthwith effected on 29.7.2010. 26. In the result, this appeal is dismissed with costs, as ordered above. Issue copy of judgment urgently. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp The date “24/08/2010” occurring in the 19th line of paragraph 25 (page 21) of the judgment dated 23/07/2010 in R.F.A.354/2010 is corrected and substituted as “30/08/2010”, vide order dated 18/08/2010 in I.A.2850/2010. Registrar (Judicial) RFA.NO.354/10 22