Geja v. Jaspal Singh & Ors.

way of pre-emption. Appellants herein were defendants being vendees. In the suit, it was pleaded that Smt. Surti Devi – defendant No.4 being the sole owner in possession of agricultural land, description of which was given in para 1 of the plaint, has sold away the land to the appellants-vendees- defendants for fictitious consideration of Rs.48,500/-. It was further pleaded that Surti Devi – defendant No.4 became sole owner of the land as she got the land in dispute through court decree against one Jagdish in a civil suit filed on 4th July, 1982. It was averred that the respondent- plaintiffs being co-sharers have got a superior right of pre-emption under Section 15(1) of the Punjab Pre-emption Act. Lakhi Ram respondent No.3 to the present appeal had also R.S.A. No.2918 of 1988 -: 2 :- instituted a separate suit and had challenged the impugned sale deed. He also claimed right of pre-emption being co-owner against the appellant- vendees-defendants. Both the suits were clubbed together and disposed of by a common judgment. The present appellants being defendants, filed written statement. In the written statement, they averred that the suit was time barred; Plaintiffs had no locus-standi to file the suit. It was further stated that the appellant-defendants-vendees were tenants at the time of sale under the mortgagee and therefore, the suit is barred under Section 17-A of the Punjab Tenancy of Land Tenures Act. The trial court formulated various issues. The trial court returned a finding that the plaintiffs to both the suits were co-sharers in the land. It further held that the plaintiffs to both the suits had right to pre-empt the suit land. Aggrieved against the judgment and decree passed by the trial court, the present appellants preferred an appeal against the plaintiffs of both the suits. In appeal, a compromise was arrived at and the Additional District Judge passed the following order:- “Parties have compromised. Sh. R.S.Mann, Advocate contends that the defendant-appellants do not press their appeal but they be allowed to retain the possession of the suit land up till

31.5.1989 when on or before it even, the appellants shall vacate the land intimating the pre-emptors that they (vendees) have since vacated it. Shri H.N.Bansal, counsel for respondent Nos. 1 and 2 and Shri Balbir Singh counsel for respondent No.3, hearing the statements have admitted the same to be correct and R.S.A. No.2918 of 1988 -: 3 :- binding. They have further undertaken that in case the appellants vacate the land on or before 31.5.1989 under intimation to them, any one of them shall not be entitled to claim compensation for the period ending 31.5.1989. Statements of the counsel for the parties have been recorded separately. In view of the statements of the parties, the present appeal fails and the same is hereby dismissed. Both the parties shall, however, be bound by the statements of their respective counsel and the same shall be deemed to be a part of the decree sheet.

2. Decree sheet be prepared and file be consigned to the record room.” A perusal of the record reveals that before passing the aforesaid order, the appellate court below had recorded statement of the Counsel for the parties. Statement made by Counsel for the appellants read as under:- “Parties have compromised. Defendant vendees/appellants do not press their present appeal, but they may be allowed to retain the possession of the suit land up till 31.5.1989, when or before it even, appellants shall vacate the land intimating the pre- emptors that they (vendees) have since vacated it. Under the circumstances of the case, parties be left to bear their own costs.” This statement was not only signed by the Counsel for the appellants but also by Rameshwar s/o Gaje Singh. Aggrieved against the disposal of the appeal by way of compromise, present regular second appeal has been filed on the ground that the Counsel for the appellants had no right R.S.A. No.2918 of 1988 -: 4 :- to effect the compromise. Counsel for the appellants had contended that the appellants had never compromised the matter with the respondents and they had not authorized their counsel in the lower appellate court to compromise the matter, therefore, a grave error has been committed by the lower appellate court in dismissing the appeal of the appellants on the statement made by their counsel and the same was done without the consent of the appellants. It is canvassed that the lower appellate court committed breach of Order 23 Rule 3 CPC as it was mandatory for the parties to sign compromise noticed by the lower appellate court. Counsel for the appellants has relied upon Gurpeet Singh v. Chatur Bhuj Goel AIR 1988 SC 400 and had drawn attention to paragraph 10 of the above judgment which reads as under:- “10. Under R. 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The court must therefore insist upon the parties to reduce the terms into writing.” To fortify the submission noticed above, further reliance has been R.S.A. No.2918 of 1988 -: 5 :- placed upon Banwari Lal v. Chando Devi, AIR 1993 SC 1139, wherein their Lordships had relied upon the observations made in Gurpreet Singh's case (supra). In Byram Pestonji Gariwala v. Union Bank of India and others, AIR 1991 SC 2234. Considering the entire case law, their Lordships held that the courts in India have consistently recognized the traditional right of lawyers and the extent and nature of their implied authority to act on behalf of their clients and thereafter, concluded as under:- “39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss - and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorized representative. If a power of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.” In Jineshwardas (D) by Lrs and others v. Smt. Jagrani and another, AIR 2003 SC 4596, their Lordships considered the observations made in Gurpreet Singh's case (supra) and law enunciated in Byram Pestonji Gariwala's case (supra) and upheld the competence of the Counsel to arrive R.S.A. No.2918 of 1988 -: 6 :- at compromise. In Pushpa Devi Bhagat (D) by LR v. Rajinder Singh and Ors., AIR 2006 SC 2628, their Lordships held as under:- “The above view was reiterated in Jineshwardas v. Jagrani [2003 (11) SCC 372]. Therefore, the words 'by parties' refer not only to parties in person, but their attorney holders or duly authorized pleaders.

19. Let us now turn to the requirement of 'in writing' in Rule 3. In this case as noticed above, the respective statements of plaintiffs' counsel and defendants' counsel were recorded on oath by the trial court in regard to the terms of the compromise and those statements after being read over and accepted to be correct, were signed by the said counsel. If the terms of a compromise written on a paper in the form of an application or petition is considered as a compromise in writing, can it be said that the specific and categorical statements on oath recorded in writing by the court and duly read over and accepted to be correct by the person making the statement and signed by him, can be said to be not in writing? Obviously, no. We may also in this behalf refer to Section 3 of the Evidence Act which defines a document as any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording the matter. The statements recorded by the court will, therefore, amount to a compromise in writing. R.S.A. No.2918 of 1988 -: 7 :-

20. Consequently, the statements of the parties or their counsel, recorded by the court and duly signed by the persons making the statements, would be 'statement in writing signed by the parties'. The court, however, has to satisfy itself that the terms of the compromise are lawful. In this case we find from the trial court records that the second defendant had executed a vakalatnama empowering her counsel Sri Dinesh Garg to act for her in respect of the suit and also to enter into any compromise. Hence there can be no doubt that Sri Dinesh Garg was authorized by the second defendant to enter into a compromise. We also find that the counsel for the plaintiffs and counsel for the defendants made solemn statements on oath before the trial court specifying the terms of compromise, which were duly recorded in writing and signed by them. The requirements of the first part of Rule 3 of Order XXIII are fully satisfied in this case.” In the present case also, statements of the Counsel were recorded in writing on oath and the same was also signed by them. It was further held in Pushpa Devi Bhagat's case (supra) that against the consent decree, no right of appeal shall accrue and the only remedy available to a party to a consent decree to avoid such consent decree is to approach the Court which recorded the compromise and made a decree in terms of it and establish that there was no compromise. In view of the settled legal position which has been noticed above, there is no merit in the present appeal. Therefore, the question formulated during course of arguments, that the consent decree passed on R.S.A. No.2918 of 1988 -: 8 :- the statement made by Counsel for the parties, is not binding upon the party, is to be answered against the appellants. Thus, this appeal, being devoid of merit, is dismissed. December 14, 2010. kadyan [Kanwaljit Singh Ahluwalia] Judge