Pyara Singh and Others vs Gurbachan Singh and Others

G.C. Mital, J.

Gurcharan Singh and Jaswant Singh filed an earlier suit through Sh. V.N. Gandhi, Advocate, against Piara Singh and Ranjit Singh for declaration to the effect that they were the sole owners and in possession of the agricultural land measuring 28 kanals 18 marlas In that suit, the counsel for the Plaintiffs made a statement on 2nd November, 1979 to the following effect:

The Plaintiffs are cosharers in the land in dispute to the extent of 1/2 share Defendants Piara Singh and Ranjit Singh (now sons of Ranjit Singh) as Ranjit Singh has died, are owners to the extent of 1/2 share in the suit land. The holding is still joint. The parties are in possession and they would hold the possession till the land is partitioned by the revenue authorities according to law for which they have yet to apply. Suit be decreed in these terms.

Similar statement was made by the counsel for the Defendants. Copy of the aforesaid statement of the counsel, Sh. V.N Gandhi is Exhibit P-6. The trial Court decreed the suit in terms of the statements of the counsel for the parties that judgment is Exhibit P-7. On 7th February, 1980 Gurcharan Singh and Jasbant Singh filed the present suit to challenge the aforesaid compromise decree, being illegal and fraudulent and claimed to be owners of the entire land measuring 28 kanals 18 manlas.

The Defendants contested the suit and pleaded that the compromise was duly arrived at between the parties and there was no Illegality or fraud The trial Court dismissed the suit by judgment and decree dated 2nd December, 1981 after recording a finding that it was proved that the compromise was duly arrived at between the parties and that no fraud was proved. It was concluded that against the compromise decree the proper remedy of the Plaintiff was to file an appeal, as a separate suit was barred under Order 23 Rule 3-A of the Code of Civil Procedure, (hereinafter referred to as the Code), and since no appeal was filed, the compromise decree was binding on the parties. The Plaintiffs went up In appeal and the lower appellate Court relied on Dalip Singh v. Raj Mal 1981 P.L. J. 298, and held that since compromise was neither in writing nor signed by the parties, the earlier compromise judgment and decree were illegal and consequently decreed the suit. The Defendants have come to this Court in this second appeal.

After hearing the Learned Counsel for the parties, I am of the view that this appeal deserves to succeed. Sh. M.L. Sarin appearing for the Appellants has invited my attention to the Division Bench judgment of this Court in Manohor Lal v. Suraj Singh 1983 P.L. R. 389, which has distinguished and explained Dalip Singh''s cast, (supra) The facts of the Division Bench''s case were at a slightly lower pedestal than the facts of the present case in as much as joint statement was made by the counsel for the parties, which was reduced to writing by the Court but the same had not been signed by the counsel for the parties yet it was held that since the matter fell within the second part of Rule 3 of Order 23 of the Code, the suit stood satisfied on the basis of the statements of the counsel for the parties, for which neither any writing nor the signatures of the counsel for the parties were necessary. It was further ruled by the Division Bench that for adjustment of a suit under the first part of Rule 3 of Order 3 of the Code it was necessary to have document in writing and signed by the parties. Since the compromise arrived at in that case fell within the second part the compromise decree was upheld.

Adverting to the facts of the present case I find that this also falls within the second part of Rule 3 of Order 23 of the Code because the suit stands satisfied as the Plaintiffs were satisfied with the decree for half of the land. The facts of the present case are in part material with the facts of the Division Bench judgment except that, counsel for the parties had signed their statements. Here the Counsel for the parties had the authority to make statement on behalf of the parties for satisfaction of whole or part of the suit and since part of the suit stood satisfied it can not be held that the decree which followed, on the basis of the statements of the counsel for the parties was illegal

If the Plaintiffs had proved that the earlier compromise decree was obtained by fraud then certainly the separate suit would have been competent. In this case the Plaintiffs led no evidence to prove fraud. On the other hand, they admitted that they had engaged Mr. Y.N. Gandhi, Advocate for filing the suit and it is he who made statement before the Court their plea that they had not authorized him to make the statement was not believed by the trial Court and the lower appellate Court has not upset that finding. Once Mr. V. N Gandhi, Advocate had the authority, the compromise is legal.

Under the circumstances, the proper course for the Plaintiffs'' was to file an appeal against the compromise decree in case they considered it to be erroneous but under Order 23 Rule 3-A of the Code, a separate still is clearly barrel. Therefore the legality of the compromise decree cannot be gone into in a separate ssuit.

For the reasons above, this appeal is allowed; the judgment and decree of the lower Appellate Court are set aside and those of the trial Court are restored. However, the parties are left to bear their own costs.