Kartar Singh Yadav vs Mahala Ram and others

M.S. Liberhan, J.—This revision petition arises out of an order recording a compromise in a suit pending before the trial Court for injunction. The short facts which emerge in the course of arguments and from the order relevant for the disposal of the revision petition are, that Respondent Mahala Ram filed a suit for injunction in which ad interim injunction was sought restraining the Petitioner and other Defendants from holding election through the Union. The ad-interim injunction was declined by the trial Court against which Mahala Ram Respondent preferred an appeal, in which the Petitioner was yet to be served when one R.K. Sharma Advocate appeared on his behalf The statement on behalf of Mahala Ram Respondent was recorded to the effect that fresh election be held in terms of certain conditions reproduced in the order under the Presidentship of Mr. R.K. Sharma, Advocate for the Petitioner It was further agreed that in terms of the said compromise, Mahala Ram shall get his application for setting aside the ex-parte order against him, dismissed as withdrawn in Suit No. 908 Dalbir Singh v. Mahala Ram etc. and the Respondent further agreed to withdraw his suit in view of the terms of the compromise arrived at and had also withdrawn his appeal.

Counsel for the Petitioner contends that the Petitioner never agreed for the compromise nor authorised Mr. P.K. Sharma, Advocate to enter into any compromise on his behalf nor he instructed him to appear on his behalf. No agreement had been entered as envisaged under Order 23 Rule 3 of the CPC Consequently, the impugned order is bad.

Counsel for the Respondent refutes the contentions and submits that since power of attorney of Mr. R.K. Sharma, Advocate, had not been withdrawn, he was competent to appear in the appellate Court Since he had appeared of his own, no notice was required to be issued to the Petitioner. It is contended that the provisions of Order 23 Rule 3 CPC do not apply as ''the compromise is not effected in the suit It is also contended that there is no error of jurisdiction and the impugned order does not result in failure of justice and since the suit stood dismissed as withdrawn in terms of the compromise, there was no necessity to send the case to the Court of Senior Sub Judge as Mahala Ram Respondent agreed to withdraw the suit.

I have been taken through the order wherein is has been categorically reproduced that the parties agreed to get the suit dismissed as withdrawn in terms of the compromise which will clearly amount to adjustment of the suit. Order 23 Rule 3, CPC categorically lays down that a compromise in a suit can be got recorded and the Court can act on it only if it is in writing and signed by the parties Thus this suit could be got adjusted or any decree in terms and in accordance with the compromise could have been passed only if the compromise was in writing and signed by the parties. Admittedly, the decree was sought to be passed in the suit in terms of the compromise recorded in an appeal that was pending against the ad interim order The order itself is the disposal of the suit in terms of the compromise. Since no compromise has been recorded in writing and signed by the parties, I am fully satisfied that Order 23 Rule 3, of the CPC in turn, shall apply and that being mandatory and the object being only that the parties may not deny it subsequently, the same having not been complied with, the order cannot be sustained and the compromise cannot be acted upon by the Courts below. The above observation of mine are squarely covered by the judgment of Hon''ble the Supreme Court in Gurpreet Singh Vs. Chatur Bhuj Goel, .

In view of my above observations, I find no force in the contention raised by the learned Counsel for the Respondent The error of jurisdiction is obvious and the compromise has not been recorded only in appeal in terms of the order but it has been receded in the suit itself as in terms of the compromise the suit has to be dismissed as withdrawn. The very fact that the terms of the mandatory provisions of law have not been complied with, the failure of justice shall be presumed in non-compliance of the mandatory provisions of law. Even otherwise, taking the contention of the Respondent at its face that it is not a compromise but the appeal has been disposed of on the statement recorded by the Court below the parties were at liberty to withdraw the said statements, which the Petitioner has done by preferring the revision petition in this Court. In view of the above observations of mine, this revision petition petition is allowed and the impugned order is quashed.

At this stage, it has been brought to my notice that the suit has been dismissed as withdrawn in terms of the compromise. In order to avoid any injustice, it is made clear that Respondent shall be at liberty to apply to the trial Court for the restoration of the suit which shall be restored, if applied. If the suit is restored within 15 days of the date of restoration of the suit, the parties may apply to the lower appellate Court for hearing of the appeal on merits. On application appeal shall be decided on merits after hearing the parties. If the Plaintiff fail to apply for restoration of the suit or fail to apply to lower appellate Court for hearing the appeal on merits, it shall be deemed to have been dismissed. In view of the peculiar facts and circumstances of the case, there shall be no order as to costs