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CASE NO.: Appeal (civil)  8104-8105 of 2003

PETITIONER: Jineshwardas (Dead) Through L. Rs. & Ors.                               

RESPONDENT: Smt. Jagrani & Anr.                                                     

DATE OF JUDGMENT: 26/09/2003

BENCH: Doraiswamy Raju & Arijit Pasayat.

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (C) Nos. 23323-23324 of 2002]

D. RAJU, J.

       Special leave granted.

       The appellant before this Court was the appellant in Second Appeal  No.693 of 1996 on the file of the Madhya Pradesh High Court at Jabalpur.  The  original plaintiff Jineshwardas, whose legal representatives are the appellants in  this Court, filed the Civil Suit No.102-A of 1980 before the Court of IV Civil Judge  Class-I, Jabalpur, , seeking for a decree for specific performance and recovery of  the possession of the suit land or in the alternative, damages at market value as  may be proved for non-performance of the contract and for recovery of Rs.2500/-  paid by the plaintiff as deposit.  The defendants disputed the suit claim by  attributing fraud and undue influence as vitiating the agreement stating that it was  opposed to public policy as well and really constituted no agreement of sale of  immovable property.  After trial and on consideration of the materials on record,  the suit filed was dismissed.  The matter was pursued on appeal before the VIth  Additional District Judge, Jabalpur, and the learned First Appellate Judge also,  after an elaborate consideration of the evidence on record, affirmed the findings  of the learned Trial Judge by holding that the suit agreement cannot be  considered as an agreement for sale of the land.  The First Appellate Judge also  noticed the specific fact that the father of the plaintiff was a practicing Advocate  and it is in respect of certain amounts spent for the litigation only, the agreement  came to be executed and that it was merely an agreement to repay and not to  convey the property itself.  On that view of the matter, while partly allowing the  appeal and affirming the judgment of the Trial Judge denying specific  performance and recovery of possession, decreed the claim of the plaintiff to  receive the sum of Rs.2,500/- with interest from 18.8.1963 till the date of filing of  the suit, namely, 28.8.1975, at Re.1/- per month and thereafter interest at the  rate of paise 50 per month.  Aggrieved, the matter appears to have been pursued  further before the High Court by means of a Second Appeal.  From the copy of  the order-sheet filed relating to the order made at the time of entertaining the  appeal when it came up for admission, it is seen that the Second Appeal was  admitted on 27.2.1998 on the following questions of law:- 1)      Whether the courts below were in error in holding that  the agreement dated 23.4.63 (Ex. P.2) was not a genuine  agreement to sell the property in suit and the same is not  enforceable?

2)      Whether the Court below was right in non-suiting the  plaintiff also on the ground of limitation?"

Thereupon, when the Second Appeal came up before the Court for final

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hearing, before another learned Single Judge, the following order came to be  passed on a consensus expressed by both the learned counsel before the High  Court at the time of hearing.  It would be useful and necessary to set out the said  order:- "Both the counsel are in agreement to settle the matter.  The  learned counsel for the respondents submits that  respondents will pay an amount of Rs.25,000/- to the  appellant within a period of one month, otherwise it will carry  interest at the rate of 12% per annum from the date of today.   On this agreed submission, this appeal is decided and  judgment and decree passed by the court below is modified  to this extent.

1.      The respondents will pay Rs.25,000/- (Rupees twenty  five thousand) to the appellants within a period of one  month.

2.      If this amount is not deposited in the Court on or before  10th June, 2002, the above amount will carry interest @  12% per annum till its realization.

3.      Cost of the litigation will be borne by both the parties.

The appeal is disposed of in view of the above said agreed  submissions."

Thereupon, the appellants seem to have filed an application for review  contending that the order passed on 9.5.2002 disposing of the appeal is nothing  but a compromise decree and since the compromise could, if at all, had been  entered into only under Order 23 Rule 3, CPC, and the one in this case has not  been so entered into in writing and signed by the parties, the same is not to be  made the basis for disposal of the appeal and submissions, if any, made in this  regard by the counsel appearing for the appellants in the High Court was without  any instructions of the appellants. The learned Judge by an order dated  15.7.2002 rejected the review application observing that the aforesaid settlement  was arrived at between the parties in the Court at the time of hearing and if the  applicants are aggrieved, they may take appropriate action under law but no  case for review has been made out.  At this stage, the above appeal has been  filed.

Pursuant to the notice ordered, the respondents entered appearance and  have filed their counter affidavit contending that in the teeth of the factual findings  made by both the courts below that the transaction was not one for sale of any  property, there was no merit in the claim to be effectively adjudicated in the  appeal before the High Court, that the counsel appearing were dully authorized  by their respective parties to argue the Second Appeal on merits and, if  necessary, compromise the same and the counsel on either side, who have  expressed such a desire to settle, being Advocates of repute with a long standing  of more than 35 years at the bar, could not be attributed with any motive and in  the absence of any concrete material to show that something illegal has been  done, the appellants cannot take advantage of hyper-technicalities to avoid the  decree in the Second Appeal, which, if at all, is really more in favour of the  appellants in the teeth of the concurrent findings recorded by the courts below.

The learned counsel for the appellants strongly placed reliance upon the  decision of this Court reported in Gurpreet Singh vs. Chatur Bhuj Goel  [(1988)1 SCC 270], to contend that in the absence of compliance with the  provisions contained in Order 23 Rule 3, CPC, the judgment of the High Court  could not be sustained.  The learned counsel for the respondent reiterated the  stand taken in the counter, noticed supra.

       We have carefully considered the submissions of the learned counsel  appearing on either side.  Though, in Gurpreet Singh’s case (supra) this Court  explained the object and purport of Rule 3 of Order 23 CPC, by laying emphasis  on the words, "in writing and signed by parties", to be necessitated in order to

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prevent false and frivolous pleas that a suit had been adjusted wholly or in part  by any lawful agreement or compromise with a view to protract or delay the  proceedings in the suit itself.  It was also observed therein that as per Rule 3 of  Order 23 CPC, when a claim in the suit has been adjusted wholly or in part by  any lawful agreement or compromise, such compromise must be in writing and  signed by the parties and there must be a complete agreement between them  and that to constitute an adjustment, the agreement or compromise must itself be  capable of being embodied in a decree.  The fact that the parties entered into a  compromise during the hearing of the suit or appeal was considered not to be  sufficient, to do away with the requirement of the said rule and that courts were  expected to insist upon the parties to reduce the terms into writing.  In Byram  Pestonji Gariwala vs Union Bank of India & Others [(1992) 1 SCC 31), this  Court while adverting to the very amendment in 1976 to Rule 3 of Order 23 CPC,  noticed also the effect necessarily to be given to Rule 1 of Order 3, CPC, as well  and on an extensive review of the case law on the subject of the right of the  counsel engaged to act on behalf of the client observed as follows:

"37. We may, however, hasten to add that it will be  prudent for counsel not to act on implied authority  except when warranted by the exigency of  circumstances demanding immediate adjustment of  suit by agreement or compromise and the signature of  the party cannot be obtained without undue delay.  In  these days of easier and quicker communication,  such contingency may seldom arise.  A wise and  careful counsel will no doubt arm himself in advance  with the necessary authority expressed in writing to  meet all such contingencies in order that neither his  authority nor integrity is ever doubted.  This essential  precaution will safeguard the personal reputation of  counsel as well as uphold the prestige and dignity of  the legal profession.

38. Considering the traditionally recognized role of  counsel in the common law system, and the evil  sought to be remedied by Parliament by the C.P.C.  (Amendment) Act, 1976, namely, attainment of  certainty and expeditious disposal of cases by  reducing the terms of compromise to writing signed by  the parties, and allowing the compromise decree to  comprehend even matters falling outside the subject  matter of the suit, but relating to the parties, the  legislature cannot, in the absence of express words to  such effect, be presumed to have disallowed the  parties to enter into a compromise by counsel in their  cause or by their duly authorized agents.  Any such  presumption would be inconsistent with the legislative  object of attaining quick reduction of arrears in court  by elimination of uncertainties and enlargement of the  scope of compromise.

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 authorization by  vakalatnama, act on behalf of his client.  Not to  recognise such capacity is not only to cause much  inconvenience and loss to the parities personally, but  also to delay the progress of proceedings in court.  If  the legislature had intended to make such a

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fundamental change, even at the risk of delay,  inconvenience and needless expenditure, it would  have expressly so stated.

40. Accordingly, we are of the view that the words ’in  writing and signed by the parties’, inserted by the  C.P.C. (Amendment) Act, 176, must necessarily  mean, to borrow the language of Order III Rule 1  CPC.

"any appearance, application or act in or  to any court, required or authorized by  law to be made or done by a party in  such court, may except where otherwise  expressly provided by any  law for the  time being in force, be made or done by  the party in person, or by his recognized  agent, or by a pleader, appearing,  applying or acting as the case may be,  on his behalf:

       Provided that any such appearance shall, if the  court so directs, be made by the party in person."  (emphasis supplied)

       We are in respectful agreement with the above statement of law.   Consequently it is not permissible for the appellant, to contend to the contrary.   That apart we are also of the view that a judgment or decree passed as result of  consensus arrived at before court, cannot always be said to be one passed on  compromise or settlement and adjustment.  It may, at times, be also a judgment  on admission, as in this case.

       Considering the fact and circumstances of the case, we find that there are  no adequate reasons on merits also to call for interference in a second appeal.   The so-called questions formulated cannot be considered to be even questions  of law and, at any rate, not substantial questions of law, as required under  Section 100, C.P.C.  The courts below have concurrently rejected the claim of  the plaintiff/appellants on pure findings of fact based upon relevant evidence and  nothing survived for consideration at all in such an appeal.  Further, respondent  side alone appears to have been saddled with additional liabilities under the  decision of the High Court, though on the basis of admission made by counsel  appearing for parties.  There is nothing said against the counsel, who appeared  for parties, and no allegations have been made also attributing any impropriety to  their action.  Therefore, we are not persuaded to agree with the submissions  made on behalf of the appellants.

       The appeals, therefore, fail and shall stand dismissed.  No costs.