IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.417 of 2002. Date of decision: 24.6.2008 Gian Chand ….Petitioner. -Versus- Gramvasi Dhamani and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner: Mr.G.D.Verma, Senior Advocate with Mr.Romesh Verma, Advocate. For Respondents: Mr.Rakesh Raghuvanshi, Advocate. Deepak Gupta, J. (oral) This Revision Petition under Section 115 CPC is directed against the order of the learned Sub Judge Ist Class, Ani, District Kullu dated 23.9.2002 whereby he has rejected the application filed by the present petitioner (hereinafter referred to as the plaintiff) under Order 23 Rule 3 CPC for disposing of the suit in terms of the compromise. Briefly stated, the facts of the case are that the plaintiff Gian Chand filed a suit against the Gramvasi Dhamani (Chawai), Shagan, Kaloo etc. as well as Smt.Tilka Devi who was Ward Panch of Gram Panchayat Chawai and respondent No.3 Karam Dass. In this suit it was prayed that the plaintiff and his brothers have raised construction on the land inherited by them from their father Sh.Tankku Ram. It was further alleged that the land of defendant 2 No.3 adjoins the land of the plaintiff and on the boundary of their land there is a common path which is used by the public of the area for their fields etc. According to the plaintiff this is the only available path and there is no other path to the house of the plaintiff and his brothers. When the plaintiff started raising construction of the house, the Pradhan, Gram Panchayat Chawai and defendants 2&3 created hurdles in the way of the plaintiff and proceedings under Section 147 Cr.P.C. were initiated before the SDM, Ani. According to the plaintiff the defendant No.3 under the garb of the said proceedings wants to take possession of the land. The SDM, Ani passed order under Section 147 Cr.P.C. which was confirmed by the Sessions Judge. The plaintiff had also challenged the said proceedings in suit. The suit was purposed to be filed against defendant No.1 in representative capacity. Notices u/o 8 CPC were issued to the residents of villages Jaged, Dhogi, Shagan, Changi, Lagi Dugri, Dugga, Daluri, Chabli, Dharshan, Khalech. On 27.6.2002, pursuant to the notices issued to the villagers, 39 residents of the aforesaid villages appeared in Court. The Court recorded their presence and also recorded that there are chances of conciliation. It was also recorded in the order that the inhabitants of the villages wants to compromise the matter. Thereafter, the matter was adjourned to 6.7.2002. The matter was not taken up on the said date and the same ordered to be listed on 12.7.2002. On the said date the villagers were not present. They were proceeded against ex-parte. The Court also recorded the fact that there is no chance of reconciliation. On 3 7.8.2002 all the 39 villagers aforesaid appeared and prayed that the ex-parte order dated 12.7.2002 be recalled and they may be permitted to join the suit. This application was allowed. The 39 villagers who appeared made a statement that they do not want to file any written statement. All of them stated that the path mentioned by the plaintiff is being used by them peacefully and openly and there is no obstruction in the said path. At this stage the defendant No.3 who is the only contesting defendant sought adjournment on the ground that he wants to engage some other counsel. On the next date i.e. 21.8.2002 the plaintiff filed an application under Order 23 Rule 3 CPC. In this application it was stated that in fact on 26.6.2002 when the villagers had appeared before the Court a compromise had been entered into between all the parties. This compromise was alleged to have been signed by the plaintiff, Defendant No.3 and the 39 villagers. According to the plaintiff the original of the compromise was given to defendant No.3 and only a photo copy was retained by the plaintiff. Therefore, it was prayed that the defendant No.3 be directed to place on record the original compromise and that the suit be decreed in terms of the said compromise. This application was contested by the defendants. It would however be pertinent to mention that the defendant No.3 does not deny the execution of the agreement. According to him the agreement was executed without conscious application of mind on his part. It was contended that the compromise is hit by the provisions of Order 23 Rule 3B of the CPC. The learned trial Court 4 has held that the compromise is contrary to the provisions of Order 23 Rule 3B and as such is liable to be rejected. To appreciate the controversy in dispute it would be relevant to refer to Order 23 Rule 3B of CPC which reads as follows: “3B. No agreement or compromise to be entered in a representative suit without leave of Court (1) no agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void. (2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit. Explanation.—In this rule, "representative suit" means,— (a) a suit under section 91 or section 92, (b) a suit under rule 8 of Order I, (c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family, (d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.” A bare perusal of this provision shows that no agreement or compromise in a representative suit can be entered without the leave of the Court expressly recorded in the proceedings. Any such agreement which is recorded without leave of the Court is void. The learned trial Court came to the conclusion that as per the first part of this provision no agreement or compromise shall be entered in a representative suit; secondly if such agreement is entered then it must be with the leave of the court which is to be recorded expressly in the proceedings. The Court held that the compromise dated 27.6.2002 was entered outside the Court without any leave from the 5 Court and hence this compromise was against the provisions of Order 23 Rule 3B. In my opinion, the learned trial Court totally mis-directed itself while passing the said order. A perusal of the zimini order of the Court especially the order dated 27.6.2002 clearly shows that the Court had recorded that there are chances of conciliation between the parties and the matter was adjourned to 6.7.2002. On the same date the parties entered into a compromise. No doubt, this compromise cannot be given effect to until leave of the Court is obtained. Sh.Verma has urged that in fact once the parties made a statement on 7.8.2002 the suit ceased to be a suit in representative capacity. I am not in agreement with the said contention. The suit was filed in representative capacity. It was treated to be in representative capacity and there is no order of the Court that it is not to be dealt with as a representative suit. Therefore, the provisions of Order 23 Rule 3B are applicable but these provisions cannot be read to mean that the parties cannot negotiate outside the Court. Negotiations can be held outside the Court. They may be recorded also outside the Court. However, before any compromise is given effect to, the Court must satisfy itself and record its satisfaction under Order 23 Rule 3B. In the present case, the Court in its order dated 12.6.2002 had indicated that the parties are moving towards reconciliation and therefore adjourned the matter. This can itself be treated to be a permission on behalf of the Court to the parties to carry on negotiations for reconciliation/compromise. 6 The purpose behind Order 23 Rule 3B is that an order passed in such a suit may affect persons who have not even appeared in the Court. Therefore, the legislature in its wisdom has laid down that the Court before acting on a compromise must give reasons and record its sanction to the said compromise. It is obvious that the Court must ensure that the rights of the parties who are being sued in a representative capacity are not being infringed without any valid cause. The intention of Order 23 Rule 3B is to protect the rights of the persons suing or being sued in representative capacity. In a sense the Court is like their guardian. The Court must ensure that the compromise is for their benefit. This purpose can be achieved by the Court at the stage when the compromise is being sanctioned and order in terms of the compromise are being passed. It is not necessary that even at the stage of negotiations the Court should be involved at every stage of the negotiations. Therefore, I am of the opinion that the learned Court below failed to exercise jurisdiction vested in it by law and has wrongly held that the compromise entered into outside the Court cannot be the subject matter of a compromise between the parties. The proper course for the Court was to call all the 39 villagers and record their statements. In the peculiar circumstances of the case the Court may also even give notice of the proposed compromise to all villagers in the same manner in which notice of a suit filed in representative capacity is given. Thereafter, the Court must satisfy itself that the compromise has been voluntarily entered into by all parties and it is for the benefit of the persons being sued in a representative capacity. 7 If these conditions are satisfied the Court may decree the suit in terms of the compromise. In view of the above discussion, the order of the learned trial Court is set-aside. It is directed that the trial court must reconsider the application filed by the plaintiff and pass orders in the light of the observations made hereinabove. Parties through their counsel are directed to appearing before the learned trial Court on 5th August, 2008. The Registry is directed to ensure that the record of the Court below be sent to it immediately so as to reach well before the next date. The petition is disposed of in the aforesaid terms. No order as to costs. June 24, 2008 ( Deepak Gupta ), PV Judge