Kishan Chand vs Rajinder Kaur

V.K. Jhanji, J.—This civil revision has been directed against the order of Additional District Judge, Bhatinda dismissing the appeal of the Petitioner as time barred.

The Petitioner filed a suit for permanent injunction restraining the Defendants from dismantling, demolishing or tampering with or interfering of building No. 4607 situated in Dhobi Bazar, Bathinda, and for mandatory injunction directing the Respondents to remove malba of the portion illegally demolished by the Defendants and now lying heaped on the roof of the first floor gallery of the shop in question without causing any damage to the building in dispute and under the supervision and as per orders of the Court and also to restore the building to its original condition.

This suit was contested by the Respondents who controverted the allegations made in the pliant. When the case was fixed for framing of the issues, the matter as compromised on the basis of the statements made by the Defendants and counsel for the Petitioner. The order of the trial Court dismissing the suit is reproduced as under:

Present:Counsel for the Plaintiffs; Defendants Swaran Sing and Sukhwinder Singh with their counsel Sh. K.K. Garg, Advocate.

Statements of the parties and their counsel have been recorded. In view of the same the suit is dismissed, The parties will be bound by the statements made by them/their counsel today in Court and the Defendant will not demolish any portion of the demised premises, which are on rent with the Plaintiff, but the Defendants will be at liberty to make construction over the roof of the demised premises, but without any damages to that and the Defendants will not dismntle or damage the board displayed outside the demised premises, bearing mark ''Kishan Chuni Store'' and the Plaintiff will not interfere in the construction to be made in that manner by the Defendants, File be consigned to the record room.

The decree of the trial Court was challenged by the Petitioner before the District Judge, Bhatinda. Petitioner also filed an application u/s 5 of the Limitation Act for condonation of delay in filing the appeal. The application for condonation of delay was dismissed as the Petitioner failed to explain the reasons for filing the appeal beyond the period of limitation. This order is being challenged by the Petitioner in this civil revision.

Learned Counsel for the Petitioner contended that the Petitioner never authorised his counsel to make a statement for getting the matter compromised. He further contended that the counsel never knew about the decision and, therefore, the appeal could not be filed within time.

On the other hand, learned Counsel for the Respondents submitted that the suit was compromised in presence of the counsel for the Petitioner, who was authorised by the Petitioner to compromise the suit. He further contended that the Petitioner was in the knowledge of the order and moreover no appeal lies from a decree which is passed on the consent of the parties.

After hearing the learned Counsel for the parties at length, I find no merit in the civil revision, It is not disputed before me that the suit was decided on 6.9.1990 in the presence of the counsel for the Petitioner who made a statement in the Court. Moreover, Swaran Sing, Sukhwinder Singh alongwith their counsel Shri K.K. Garg, Advocate were present in the Court and their statements were also recorded. In this view of the matter, no appeal was maintainable because consent decree was passed on the basis of the statements made by the Respondents as well as counsel for the Petitioner and, therefore, proper method of questioning the consent decree was either by way of review or by regular suit and not by way of appeal, The argument of learned Counsel for the Petitioner that he never signed a compromise or gave any authority to his counsel to enter into compromise, is of no consequence In view of the judgment of the Supreme Court as reported in Byram Pestonji Gariwala Vs. Union Bank of India and others, wherein provisions of Order 23 Rule 3, CPC came into consideration and it was held as under:

The words ''in writing and signed by the parties'', inserted in Order 23 Rule 3, CPC by the CPC (Amendment) Act, 1976 necessarily mean and include duly authorised representative and counsel. Thus compromise in writing and signed by counsel representing the parties but, not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matter concerning the parties, but extending beyond the subject matter of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn out fight. A compromise decree creates an estoppel by judgment.

I need not go into the matter as to whether there was sufficient reason for condonation of delay in filing the appeal beyond the period of limitation because I am of the view that the appeal itself was not maintainable.

Consequently, the civil revision is dismissed; However, parties are left to bear their own costs.