Walaiti Ram vs Dharam Singh and ors.

J.V. Gupta, J.

This is plaintiff''s Second Appeal whose suit was decree by the trial Court. An appeal against the said decree of the trial court was decided on compromise between the parties.

The plaintiff filed a suit for declaration to the effect that he was the ownerinpossession as cosharer of 11/16th share of the suit land. The trial Court decreed the suit vide judgment dated 22nd January, 1978, holding that the plaintiff had become the owner as cosharer to the said extent. In appeal filed by the respondent/defendant, the parties entered into a compromise whereby statement of Walaiti Ram, plaintiff, was recorded on 2nd March, 1979, which was duly signed by him as well as by his counsel Shri J.R. Gupta, Advocate. It reads as under :

"I have compromised with Dharam Singh appellant. According to the compromise Dharam Singh appellant shall have 3/16th share in the suit property whereas I shall be the owner to the extent of 8/16th share. At the time of the partition the construction raised, both by Dharam Singh appellant and myself, shall be respected during the partition proceedings. Orders may be passed accordingly."

A similar statement of Dharam Singh, defendant, was recorded which was duly signed by him and his counsel Shri R.G. Kohli, Advocate. It reads as follows :

"I have herd the statement of Walaiti Ram plaintiffrespondent.

I accept it to be correct. Necessary orders may be passed."

In view of the above compromise between the parties, the learned lower appellate Court modified the decree of the trial Court accordingly.

The plaintiff has filed this Second Appeal on the sole ground that the mandatory provisions of Order 23 Rule 3, Code of Civil Procedure, as amended, have not been observed in the present case, as there was no written compromise duly signed by the parties. No other objection was raised to the compromise as such.

Learned counsel for the appellant submitted that in the absence of any written compromise, the compromise based on the statements of the parties, as in the present case, cannot be held to be valid or legal in view of the latest Supreme Court judgment in Gurpreet Singh v. Chatur Bhuj Goel, (1988) 1 SCC 270. On the other hand, learned counsel for the respondent/defendant submitted that the said case of the Supreme Court was clearly distinguishable, as in that case even the statement of the party was not signed by the party himself whereas in the present case the statements of the parties were duly signed by them as well s countersigned by their counsel. In support of this contention, reliance is placed on a Division Bench judgment of this Court reported as Smt. Raksha @ Rani Raksha Devi v. Ram Lal, 1986 PLJ 639 : 1986 R.R.R. 34.

After hearing the learned counsel for the parties and going through the case law cited at the bar I do not find any merit in this appeal. The Supreme Court case [Gurpreet Singh''s case (supra)] has got no application to the facts of the instant case. In that case, even the statement of the respondent which was recorded by the Court was not signed by him, as is evident from para 5 thereof. Not only this, in para 12 thereof it has been observed that, "In any event, the present case clearly does not come within the ambit of the second part of Order XXIII, Rule 3 of the Code. Under the terms of the proposed compromise, the appellant was required to pay Rs. 2,25,000/ by a bank draft on March 17, 1987 but the fact remains that the respondent before the due date resiled from the proposed compromise saying that it was detrimental to his interest. That being so, the appellant could only fall back on the first part. But in the absence of an agreement in writing, the learned Judges had no other alternative but to direct that the appeal be listed for hearing on merits."

In the present case, as observed earlier, the statements made by both the parties are duly signed by them, and also countersigned by their respective counsel. Moreover, there is no other ground taken in this Court for challenging the said compromise except that it was not reduced to writing as such. It was held by this Court in Smt. Raksha Rani alias Rakasha Devi''s case (supra) that if the statements of the parties were recorded by the trial Court containing the terms of the compromise which were duly signed by them it could not be said that the compromise should not be considered to be in writing and signed by the parties. In view of the said judgment of this Court, this appeal is liable to be dismissed. Consequently, the appeal fails and is dismissed with costs.