Baljit Singh vs Charanjit Kaur

L.N. Mittal, J.

CM No. 14323.C of 2010

Allowed as prayed for.

RSA No. 4800 of 2010

Defendant Baljit Singh having remained unsuccessful in both the courts below has filed the instant second appeal.

Respondent-Plaintiff Charanjit Kaur filed suit against Defendant-Appellant for possession of suit land by specific performance of the agreement

to sell dated 28.11.2001. The Plaintiff alleged that the Defendant agreed to sell suit property to the Plaintiff for Rs. 16,53,136.50 and received Rs.

3 lacs as earnest money and executed the aforesaid agreement. Sale deed was to be executed upto 10.5.2002, but date for execution of the sale

deed was extended to 30.5.2002 and then to 19.8.2002 by making endorsements on the back of the agreement. Accordingly on 19.8.2002, the

Plaintiff after intimating the Defendant went to the office of Sub Registrar for getting sale deed executed in terms of the agreement to sell but the

Defendant did not turn up.

The Defendant admitted execution of the agreement and receipt of Rs. 3 lacs as earnest money. However, Defendant denied that date for

execution of the sale deed was extended mutually or on account of illness of the Defendant''s wife. On the other hand, it was pleaded that the

Plaintiff could not get the sale deed executed as she could not arrange balance sale consideration inspite of getting date extended twice. Defendant

was always ready and willing to execute the sale deed in terms of the agreement. He also remained present in the office of Sub Registrar to execute

the sale deed. However, Plaintiff told the Defendant on telephone that the Plaintiffs husband had gone to Dehradun to arrange money but the

Plaintiff did not turn up. Thus, the earnest money stood forfeited.

During the pendency of the suit, parties allegedly effected written compromise dated 14.6.2004, according to which Defendant agreed to

execute the sale deed on receiving additional consideration of Rs. 2 lacs i.e. 15,53,137/- in addition to the earnest money. Sale deed was to be

executed on 30.7.2004. The said compromise was produced in trial court by the Defendant himself. However, the sale deed could not be

executed and registered as per said compromise.

Defendant moved application on 25.8.2004 for rejecting written compromise dated 14.6.2004 alleging that the said compromise could not be

acted upon. On the other hand, the Plaintiff on 19.10,2004, besides filing reply to the aforesaid application of the Defendant, also moved an

application for recording the aforesaid compromise and for decreeing the suit accordingly under Order 23 Rule 3 of the CPC (in short ""Code of

Civil Procedure""). Said application of the Plaintiff was resisted by the Defendant alleging that the compromise was effected under pressure of some

persons. However, Defendant admitted his signatures on the written compromise.

Learned trial court framed following issues for disposal of aforesaid application of the Plaintiff:

Whether the compromise dated 14.6.2004 entered between the parties was obtained under pressure forcibly as alleged? OPD

Relief.

Learned Civil Judge (Senior Division), Yamuna Nagar at Jagadhri vide judgment and decree dated 28.5.2009 held that valid compromise dated

14.6.2004 has been effected between the parties and the same is binding on the parties. Accordingly suit was decreed in terms of the said

compromise. First appeal preferred by the Defendant stands dismissed by learned District Judge, Yamuna Nagar vide judgment and decree dated

28.9.2010. Feeling aggrieved, the Appellant has preferred the instant second appeal.

I have heard learned Counsel for the Appellant and perused the case file.

Learned Counsel for the Appellant vehemently and emphatically contended that compromise in question has not been signed by the Plaintiff

herself and therefore, mandatory requirement of Order 23 Rule 3 CPC that there should be compromise in writing and signed by the parties has

not been complied with. It was also contended that statements of the parties regarding compromise were also not recorded and for this reason

also, the compromise is not valid. Reliance in support of these contentions has been placed on judgment of Hon''ble Supreme Court in

Jiveshwardas (D) through L.Rs. and Ors. v. Smt. Jagrani and Anr. 2003(4) R.C.R.606, and judgment of this Court in Central Bank of India v.

Sewa Singh (1996)114 P.L.R. 365.

I have carefully considered the aforesaid contentions but find no merit therein. It is admitted factual position that compromise dated 14.6.2004

has been signed by the Defendant and has also been signed by counsel for both the parties but not signed by the Plaintiff herself. The Defendant in

his reply to Plaintiffs application for recording the compromise alleged that compromise was obtained under pressure of some persons. However,

this plea of the Defendant-Appellant has been rightly discarded by the courts below because the Defendant did not even name the persons who

allegedly pressurized him to effect compromise. Moreover, the Defendant earlier moved application on 25.8.2004 for rejecting the application on

the ground that it could not be acted upon. In that application, the Defendant did not even remotely allege that the compromise was effected under

pressure of some persons. Moreover, the Defendant had himself produced the aforesaid written compromise in the trial court. If the compromise

had been obtained under pressure, the Defendant would not have produced the said compromise in the court. In addition to it, the compromise has

also been signed by counsel for both the parties. If the compromise had been entered into by the Defendant under pressure, it would not have been

signed by his counsel. For all these reasons, the version of the Defendant that compromise was obtained under pressure is patently untenable and

has been rightly negatived by the courts below.

As regards contention of the counsel for the Appellant that compromise has not been signed by the Plaintiff herself and that statements of

parties regarding the compromise were not recorded and therefore, the compromise is vitiated, this contention also cannot be accepted. As

noticed herein before, the compromise has been signed by the counsel for the Plaintiff and therefore, absence of the signatures of the Plaintiff

herself on the compromise does not invalidate the compromise. Moreover, the Plaintiff herself asserted and admitted the aforesaid compromise.

The compromise could be invalidated if it had been signed by neither the Plaintiff nor her counsel and the Plaintiff had disputed the same. When the

Plaintiff is admitting the compromise, and the compromise has also been signed by her counsel, the compromise is not vitiated. It may be added

that under Order 3 Rule 1 Code of Civil Procedure, any appearance, application or act required to be made or done by a party in the court, may,

except where otherwise expressly provided by any law, be made or done by the party in person or by his recognized agent, or by a pleader

appearing, applying or acting, as the case may be, on his behalf. Consequently, signature of Plaintiffs counsel on the compromise is sufficient

compliance of Order 23 Rule 3 CPC in view of provision of Order 3 Rule 1 Code of Civil Procedure. Judgment of Hon''ble Supreme Court in the

case of Jineshwardas (supra) rather goes against the contention of counsel for the Appellant. In that case, statements of counsel for the parties

were recorded but there was no written compromise on record. It was held that compromise decree was not vitiated. This judgment has two

consequences. Firstly, statement of counsel and not of the party in person is sufficient for a valid compromise. Secondly both written compromise

as well as statement of the parties are not required for valid compromise either statement of parties regarding compromise or written compromise

is sufficient. Consequently in the instant case, there was valid compromise between the parties which was signed by the Defendant and also by

counsel for the parties. Judgment of this Court in the case of Central Bank of India (supra) also does not help the Appellant because in that case,

there was no written compromise at all and there was statement of the Defendant that the suit be decreed with simple interest. It was observed as a

word of caution in the said judgment that the court while recording statements of the counsel for the parties should take due care in the eventuality

of some offer given by one party and the said offer being accepted by the opposite party. In that event, statements of both the parties should be

recorded and singed by the parties and their counsel. Thus, there was no written compromise produced in the court in that case. On the contrary,

an offer was made by the Defendant partly accepting the claim of the Plaintiff. In this situation, the aforesaid observation by way of caution was

made. It has not been laid down that there should be written compromise and also statements of the parties should be recorded regarding the

compromise in order to constitute a valid compromise. It is not requirement of law as contained in Order 23 Rule 3 Code of Civil Procedure.

For the reasons aforesaid, I find no illegality or perversity in the judgments of the courts below warranting interference in second appeal. On

the contrary, the compromise has been rightly recorded and suit has been rightly decreed in terms of compromise. The entire litigation is result of

dishonesty of the Defendant. He entered into agreement and then resiled from it. Readiness and willingness of the Plaintiff is proved from the fact

that suit was filed even before the extended date of execution of the sale deed. Even during the pendency of the suit, the Plaintiff agreed to pay

additional excess amount of Rs. 2 lacs to the Defendant by way of compromise, but even thereafter, the Defendant after initially entering into

compromise turned dishonest and resiled from the compromise. There is no merit in the instant second appeal. No question of law much less

substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine.