R.S.A. No.1799 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1799 of 1992 Date of Decision:17.10.2008 Gurnam Singh and others .....Appellants Vs. Ajmer Singh and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. S.C. Sibal, Senior Advocate with Mr. V.S. Rana, Advocate for the appellants. Mr. Amit Arora, Advocate for Mr. P.S. Saini, Advocate for the respondents. **** HARBANS LAL, J. The genesis of the case is that the plaintiffs being the sons/ daughters of Jiwan Singh are inter-related. The defendants are their nephews being the sons of their elder brother Hazara Singh- deceased. Prem Singh was the real brother of the plaintiffs. He died issueless and intestate on 19.12.1975. He being joint owner had one share along with Ajmer Singh, plaintiff in the land measuring 56 kanals. They were in cultivating possession of the disputed land. Land being joint, Ajmer Singh had one half share in every inch of the land belonging to Prem Singh. The estate of Prem Singh is to be divided into five equal shares between the plaintiffs interse being his brothers/ sisters. The defendants have no right, title or interest in the property in dispute. They have set up a false and bogus will dated 19.12.1975 and got the land pertaining to the share of Prem Singh deceased mutated in their names. On the basis of the mutation, the defendants took possession of part of the suit land as delineated in R.S.A. No.1799 of 1992 -2- paragraph No.7 of the plaint. Prem Singh- deceased was suffering from tuberculosis for the last more than three years and was a patient of Asthama. Ajmer Singh, plaintiff used to cultivate the land in suit being joint owner with Prem Singh, deceased who was not in a sound and disposing state of mind when the alleged will was executed. On these allegations, the suit was filed for declaration to the effect that the plaintiffs are owners of one half share in the land measuring 56 kanals and 1/8th share out of the total land measuring 4 kanals 1 marla and 1/8th share out of the total land measuring 12 kanals 9 marlas as described in the plaint with consequential relief for possession of the aforesaid land. In their written statement, the defendants admitted the relationship with the plaintiffs but denied the date of death of Prem Singh, deceased. However, they admitted Prem Singh to be owner of the suit land. As alleged, he was cultivating the land separately from Ajmer Singh, plaintiff and that Prem Singh had executed Will in favour of defendants No.1 to 3. Lastly, it has been prayed that the suit may be dismissed. After hearing learned counsel for the parties and examining the evidence on record, the learned Sub Judge, III Class, Ambala dismissed the suit of Ajmer Singh as well as Nasib Singh, plaintiffs vide his judgment/ decree dated 11.2.1987. Feeling aggrieved therewith, Ajmer Singh and Nasib Singh went up in appeal, which was disposed of by the Court of learned Additional District Judge, Ambala vide his judgment/ decree dated 20.3.1992 in the following terms:- “I would thus hold that the parties did file a settlement, terms whereof are stated in compromise deed Ex.C1. In the terms thereof the appeal shall stand allowed. The judgment and R.S.A. No.1799 of 1992 -3- decree of the ld. trial court shall stand varied to the extent that the plaintiffs- appellants are declared to be owners of One- Sixth share of land in suit i.e. the share of Prem Singh deceased.” Feeling dissatisfied therewith Gurnam Singh, Ujagar Singh and Balwant Singh, defendants preferred this appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. S.C. Sibbal, learned Senior Advocate appearing on behalf of the appellants urged with a good deal of force that there is no written compromise signed by the parties on the record and hence the learned Additional District Judge has committed an error in the exercise of his jurisdiction and law in passing the impugned judgment and decree on the basis of compromise. There is only an application for recording the compromise which is signed by only Ujjagar Singh, defendant and thumb marked by Nasib Singh appellant and signed by the counsel of Ajmer Singh, Nasib Singh, respondents here in this appeal and the counsel for the appellants in that appeal, which does not constitute a valid compromise under Order XXIII Rule III of the Code of Civil Procedure on which a compromise judgment and decree could be passed. He further argued that as per the provisions of the afore-referred order and rule, it is necessary that the compromise must be in writing and signed by the parties. To buttress this stance, he has sought to place abundant reliance upon the observations made in re: Banwari Lal v. Smt. Chando Devi, 1993 (Supplementary) Civil Court Cases, 214. R.S.A. No.1799 of 1992 -4- To tide over these submissions, Mr. Amit Arora, Advocate appearing on behalf of the respondents pressed into service that the counsel for Gurnam Singh, Balwant Singh and Ajmer Singh having been authorised to enter into compromise on their behalf, no fault can be found with the compromise signed by their respective counsel on their behalf. This contention merits rejection. The so-called compromise deed is exhibited as C. A glance through the same would reveal that Gurnam Singh as well as Balwant Singh, respondents in the appeal are not the signatories thereto. On their behalf, their counsel has appended his signatures on this deed. Only Ujagar Singh, respondent has signed this deed. As regards appellants, only Nasib Singh, appellant has thumb marked this document. On behalf of Ajmer Singh, their counsel has appended his signatures. It is deducible from this document that it has not been signed or thumb marked by the respondents, Gurnam Singh , Balwant Singh and the appellant Ajmer Singh. To be determined herein is as to whether this document without there being the signature or thumb impressions of the aforesaid parties can be deemed to be a valid and lawful compromise in the estimation of law. To my mind, its answer must be in the negative for the discussion to follow hereunder. The relevant Order XXIII, Rules 3, 3A & 3B of the Code of Civil Procedure reads as under:- “3. Compromise of suit Where 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, or where the defendant satisfies the plaintiff in respect of R.S.A. No.1799 of 1992 -5- the whole or any part of the subject-matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit: PROVIDED 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; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation: An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule. Provided that the hearing of a suit shall proceed and no adjournment shall be granted in it for the purpose of deciding whether there has been any adjustment or satisfaction, unless the Court for reasons to be recorded in writing, thinks fit to grant such adjournment, and provided further that the judgment in the suit shall not be announced until the question of adjustment or satisfaction has been decided: Provided further that when an application is made by all the R.S.A. No.1799 of 1992 -6- parties to the suit, either in writing or in open Court through their Counsel, that they wish to compromise the suit, the Court may fix a date on which the parties or their Counsel should appear and the compromise be recorded, but shall proceed to hear those witnesses in the suit who are already in attendance, unless for any other reason to be recorded in writing, it considers it impossible or undesirable to do so. If upon the date fixed no compromise has been recorded, no further adjournment shall be granted for this purpose, unless the Court, for reasons to be recorded in writing, considers it highly probable that the suit will be compromised on or before the date to which the Court proposes to adjourn the hearing.” 3A. Bar to suit No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. 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 R.S.A. No.1799 of 1992 -7- 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 1, (c) a suit in which the manager of an undivided Hindu family sues or 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 reading of the above rules, shows that before passing a consent decree on the basis of compromise, the Court has to be satisfied that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties. Adverting to the facts of the instant case, as noted supra, all the parties have not signed the alleged compromise deed Ex.C. In re: Banwari Lal's case (supra), the Apex Court held as under:- “The learned counsel appearing for the respondent took a stand that the High Court was justified in taking the view that the suit had been simply withdrawn by the plaintiff- appellant under Rule 1 of Order XXIII and it had not been compromised in terms of Rule 3 of the said Order XXIII; as such there was no occasion for the appellant to file an application for recall of the said order and for restoration of the suit in question for being R.S.A. No.1799 of 1992 -8- heard on merit. From the copy of the petition which was filed on 27.2.1991 it appears that the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which the plaintiff- appellant had thereafter no connection with the disputed land and defendant- respondent shall be deemed to be in possession and the owner of the said disputed land. The prayer made in the said petition also says that the compromise may be ordered to be accepted. On the basis of that petition as already mentioned above, the Court passed an order saying that the compromise had been accepted. In the order it has been mentioned that the suit of the plaintiff be dismissed as per compromise deed Ex.C. In view of the aforesaid facts and circumstances, it is difficult to hold that by order dated 27.2.1991 the Court allowed the suit to be withdrawn in terms of compromise to dismiss the suit of the plaintiff on basis of the terms and conditions mentioned in the petition of compromise. As such, the validity of that order has to be judged treating it to be an order decreed to have been passed in purported exercise of the power conferred on the court by Rule 3 of Order XXIII of the Code. The learned Subordinate Judge should not have accepted exercise of the said petition of compromise even if he had no knowledge of the fraud alleged to have been practised on the appellant by his counsel, because admittedly the petition of compromise had not been signed either by the respondent or his counsel. This fact should have been discovered by the R.S.A. No.1799 of 1992 -9- Court. In the case of Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400, it has been said:- 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. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The Court must therefore insist upon the parties to reduce the terms in writing.” Here in this case, rights of the respondents, Gurnam Singh Balwant Singh and the appellant Ajmer Singh were in issue. In the absence of their signatures or thumb impressions on Ex.C, no valid decree could have been passed on its basis. Thus to say the least of it, the impugned judgment/ decree passed by the Court of learned Additional District Judge, Ambala was abhorrent to the letter and spirit of order XXIII Rule III ibid. The first appeal is required to be decided afresh by the learned First Appellate Court. Consequently, the impugned judgment and decree are hereby set aside and the case is remanded back to the Court of learned Additional District Judge, Ambala for deciding the appeal on merits after hearing the respective counsel for the parties without taking note of the compromise deed Ex.C. The parties through their respective counsels are R.S.A. No.1799 of 1992 -10- directed to put in their appearance before the Court of learned Additional District Judge, Ambala on 26.11.2008. This appeal is of the year 1992. As such, the learned Additional District Judge, Ambala is directed to dispose of the appeal within two months from the date of receipt of the certified copy of the judgment. Registry is directed to transmit a certified copy of the judgment to the Court of learned Additional District Judge, Ambala at the earliest possible. October 17, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No