Punjab-Haryana High Court
Narinder Aneja vs Harbans Lal And Ors on 9 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
CR No. 2770 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CR No. 2770 of 2013
Date of decision : 9.9.2014
Narinder Aneja ........Petitioner
Vs.
Harbans Lal and others .........Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present:- Mr. Ashish Aggarwal, Senior Advocate with
Mr. Karthik Gupta, Advocate, for the petitioner
Mr. M.S. Khillan, Advocate, for the respondents
---
Rakesh Kumar Jain, J. (Oral)
This petition is against the order dated 18.4.2013 by which application filed by the petitioner under Order 23 Rule 3 of the CPC has been dismissed.
In brief, the facts narrated before me are that one Ganga Ram has four sons and one daughter, namely; Narinder Aneja, Harbans Lal, Satish Chander, Jagdish Lal and Parkash Wanti. Ghanga Ram died on 1.7.2002 whereas his son Jagdish Lal died on 22.7.2005. The other brothers of the petitioner, namely; Harbans Lal, Satish Kumar and Jagdish Lal set up a registered Will dated 2.3.2000 excluding the petitioner and his sister Prakash Wanti. He challenged the Will by way of suit for declaration stating that the mutation of inheritance No. 1677 sanctioned on 12.3.2008 on the basis of Will 2.3.2000, is illegal, null and void and not binding on ASHWANI KUMAR his rights and also sought a declaration that Will dated 2.3.2000 is illegal. 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -2-
A compromise was effected on 14.7.2009 but it was not signed by one of the sons of Ganga Ram namely; Satish Kumar. In order to incorporate the compromise in the pleadings, the petitioner filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint. But his application was dismissed on 11.1.2013. He filed Civil Revision No. 306 of 2013, which was disposed of on 17.1.2013. Order dated 11.1.2013 was set aside. However, liberty was granted to the petitioner to file application under Order 23 Rule 3 of the CPC. Then according to the petitioner, another compromise was entered into between the parties on 3.5.2012. The petitioner then filed an application under Order 23 Rule 3 of the CPC for passing the decree in terms of the compromise dated 3.5.2012. This application was contested by the respondents by filing a reply and in Para No. 5 of the reply, the existence of the compromise and that the original is lying with Kharaiti Lal (son-in-law of Ganga Ram), was also denied. The learned trial Court vide its impugned order dismissed the application observing that only the plaintiff is urging that the compromise has taken place though it is denied by the defendants and thus, the compromise could not have been produced before the Court. Unless and until certain conditions were fulfilled as per Para No.1 of the compromise and original of the compromise has been withheld by the parties and on the basis of photocopy, order under Order 23 Rule 3 of the CPC cannot be passed. Against this order, the present revision petition has been filed.
Learned counsel for the petitioner has submitted that two questions are involved in this revision petition, first; whether in case of assertion by the plaintiff of compromise and denial by the defendants of its ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -3- existence, the trial Court should have hold an enquiry by framing an issue? Second question arises is 'whether the plaintiff could have been granted an opportunity to prove the existence of the original compromise with the aid of Sections 65 and 66 of the Indian Evidence Act, 1872? Learned counsel for the petitioner has further argued that the answer to the first question is itself provided in Order 23 Rule 3 of the CPC.
In order to appreciate his argument, it would be relevant to refer to the provision, which reads as under :-
"Order XXIII - Rule 1 and 2. xxx xxx Rule 3. Compromise of suit -Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit;
Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation - An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 ( 9 of 1872), shall not be deemed to be lawful within the meaning of this rule."
He has also relied upon the judgment of the Bombay High Court in the case of "Shri Purushottam Pandurang Nipane v. Shri Tarachand Purushottam Nipane, 1997 (1) ICC 696", Karnataka High Court in the case of "Gangavva v. Basappa Bapu Naaruti, 2001(2) ICC 468" and a Division Bench judgment of the Madras High Court in the case ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -4- of "P.S.S. Somasundaram Chettiar v. R. Sathappan and others, 1983 AIR (Madras) 372)'.
On the other hand, learned counsel for the respondents has vehemently argued that the alleged compromise dated 3.5.2012 is a conditional compromise. Even as per the saying of the plaintiff and unless and until those conditions are fulfilled, it cannot be considered. He has also submitted that the compromise dated 3.5.2012 is not a legal document because it has not been signed by Smt. Prakash Wanti, who is otherwise a party to the suit, arrayed as defendant No.7.
In respect of his contention, he has relied upon a judgment of the Supreme Court in the case of "K. Venkatachala Bhat and another v. Krishna Nayak (D) by LRs. and others, (2005) 4 SCC 117".
I have heard learned counsel for the parties on the first issue and examined the record with their able assistance.
In so far as this issue is concerned, the petitioner has alleged that a compromise reduced into writing and duly signed by the parties, which is totally denied by the respondents in their reply filed before the Court, would itself raise the question as to 'what should be the course of action on the part of the Court in such a situation, whether the Court should reject the compromise on the denial of the defendants or the Court should hold an enquiry to find out as to whether such a compromise really exist or not? It is, needless to mention that when one party asserts and other party denies a fact, it needs an enquiry because it would tantamount a question of fact which could be determined only after leading evidence.
In proviso to Order 23 Rule 3 of the CPC, it is mentioned that ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -5- where it is alleged by one party and denied by the other then the Court shall decide the question. Once the determination of a question is provided in the provision itself, the learned trial Court should have ordered for an enquiry by framing an issue as to 'whether there exists a compromise between the parties as alleged?' It should have given opportunities to both the parties to lead evidence' which could have been restricted with number of opportunities. In the case of Shri Purushottam Pandurang Nipane (supra), the Bombay High Court has made the following observations :-
"10. As has already been pointed out, Order 23, Rule 3 Proviso of the Civil Procedure Code contemplates a complete enquiry. Again, the language lays a stress that no adjournment would be granted for the purpose of deciding the question as to whether such compromise was really in existence. There appears to be no such enquiry having been made by the trial Court and it seems that the trial Court has chosen to decide the question merely on the basis of the applications made before it, vide Exhibits 28 and 30. Proviso to Rule 3 of Order 23 casts a duty on the Court where the compromise application is pending to decide as to whether, in fact, the compromise has been arrived at particularly when one party asserts about the compromise and the other party denies the same. Such indeed was the situation in this matter. While defendants assert the factum of compromise along with the conditions expressed therein, the plaintiff has denied the same. If we see Exhibit 30, the very factum of compromise is also disputed by the plaintiff. Not only this but the plaintiff further goes on to suggest that there was a fraud played upon him for entering into this compromise. The question, therefore, as to whether the said compromise was in reality ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -6- there or not and further question as to whether the said compromise could be read and recorded, should have been decided by a full fledged enquiry for that purpose. Again, because of the positive language of Order 23 Rule 3 Proviso, this enquiry should have been immediately conducted. One can understand that when this application (Ex. 28) was given, since the records of the trial Court were not available, the matter could be and, in fact, was adjourned. However, it seems that the adjournment is not for that purpose; because the positive language of was the Proviso to Rule 3 of Order 23, the Court was bound to give reasons as to why it was deferring the enquiry. In this case, the trial Court firstly held that the compromise cannot be read and recorded and indeed such finding could not have been given unless the trial Court had recorded a positive finding regarding the factum of the compromise by parties or not and whether the parties had put their signatures on the compromise application. What the trial Court has done is that it had- mixed these two questions. After all the question of factum of compromise would be different question for the question of validity of the compromise. The trial Court has in a confused manner dealt with these questions and has committed an error in first refusing to read and record the compromise on the ground that the plaintiff had changed the stand. As regards the fact of compromise, the trial Court has left that question open and has deferred that question to the stage when the evidence in the main suit would be led. Now, all this is clearly contrary to the language of Order 23 Rule 3 of the Civil Procedure Code, and more particularly the Proviso thereto. The finding given by the trial Court at the end of para 6, is therefore, premature and has to to be set aside. The trial Court was bound to hold an enquiry into the question as to whether there was, in fact, an adjustment or satisfaction, and it is only thereafter that the ASHWANI KUMAR 2014.10.06 15:26 further question would arise as to whether the terms of the I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -7- compromise were valid enough so that it could be read and recorded. The while finding in para 6, therefore, appears to be completely premature. The trial Court has also expressed its doubts regarding the validity of the compromise because of the fact that Parvatibai was not a signatory of such compromise. It is again an admitted position that on 13.9.1993, Parvatibai was deleted from the array of the defendants, the date of which is not known to us. Whether Parvatibai had any interest in the compromise and what is the effect of her subsequent deletion was bound to be considered by the trial Court, which has not been considered at all. The whole case law mentioned by the trial Court in its order, and more particularly in para 6, has been completely misunderstood and was, not necessary. The case law is also not discussed at all. The trial Court has also looked askance at the change of the Advocates by the plaintiff. Unless, therefore, there was a full-fledged enquiry into the factum of the compromise, no further findings could have been recorded rewarding the legality or otherwise of the same. Indeed, all this could have been done at one and the same time, after giving the opportunities to the parties to lead- evidence on that issue. The trial Court would have been justified in directing the parties first to lead evidence on the question of the existence or otherwise of the compromise and could have then decided as to whether the compromise was valid or not. Instead, the trial Court proceeded to hold that the compromise was not valid and then has given an opportunity to the parties to prove or disprove its existence. The whole thing is like putting a cart before the horse."
Similarly, in the case of Gangavva (supra), the Karnataka High Court has also made the following observations :-
"9. In K. Chandrahas Shetty's case the Court below had ASHWANI KUMAR 2014.10.06 15:26 recorded depositions of the parties after filing of the I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -8- compromise petition. This shows that while enquiring into this aspect of the matter, the Court is required to conduct an enquiry by recording the evidence of the parties, if necessary. In the circumstances, when the petitioner has set up compromise between the petitioner and defendant No.2 and when defendant No.2 has denied the same, the Court ought to have conducted the enquiry in this regard and ought to have recorded a finding whether there was a compromise between the plaintiff and defendant No.2 or not as stated by the plaintiff and ought not to have dismissed the compromise application filed by the petitioner and the statement filed by the petitioner for making an enquiry into this aspect of the matter. In the circumstances, both the orders passed by the Court below cannot be sustained."
In the case of P.S.S. Somasundaram Chettiar (supra), the Madras High Court has held as under :-
"31. Thus, after consideration of the provision of law and the views expressed in the above judicial decisions, we are of the view that for the purpose of answering the first question contained in the un-amended order 23 Rule 3 CPC - whether it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part? - it is the foremost duty of the Court before which an application has been filed for recording a compromise to investigate the question whether it has been satisfied that the suit has been adjusted wholly or in part by the agreement, which is attacked as the result of fraud, undue influence and coercion. Especially so, in this case, where the applicant, who stands in a fiduciary relationship as father has propounded the agreement, which is said to have been signed by the quondam minor, viz., the respondent, the respondent's wife and the applicant's own wife, viz., the second plaintiff, with respect to several other items of properties, which are not ASHWANI KUMAR 2014.10.06 15:26 the subject matter of the suit and the encumbrances over the I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -9- few items of properties allotted to the quondam minor are said to be very heavy, which fact has not been disclosed in the agreement and the agreement having been propounded more than one year and two months after the date of the agreement.
32. Accordingly, we answer the reference that the first limb of Rule 3 Order 23 of the CPC envisages an enquiry being made by the Court before recording any agreement or compromise on the application of one party for being satisfied itself whether the suit has been adjusted wholly or in part outside the Court, when such agreement is attacked as one that has been obtained by fraud, undue influence and coercion. Any observation made by us in the course of our judgment will not prejudice the parties in the disposal of the application on merits by the Court which will dispose of the same. With the above observations, we direct that the applications be enquired into and disposed of on merits."
So far as the respondents are concerned, no judgment to the contrary has been cited that in such circumstances, no enquiry could be conducted. Hence, this question is decided in the affirmative by holding that in case where a compromise is asserted by the plaintiff or the defendant under Order 23 Rule 3 of the CPC and denied by the other side, it is incumbent upon the Court to hold an eqnuiry by framing issue of its existence.
Now I would advert to the second question framed in this case 'as to whether the petitioner can be permitted to lead secondary evidence to produce photocopy of the compromise as it has happened in the present case because the case of the petitioner is that after the compromise the original copy was kept in the custody of mediator namely; Kharaiti Lal, who happened to be the son-in-law of Ganga Ram.
ASHWANI KUMAR2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -10-
There is no dispute that the photocopy of compromise cannot be looked into by the Court as the photocopy can be manufactured but if the plaintiff is asserting that compromise has been effected and original is also in existence, then the question would arise whether the plaintiff can prove the document by secondary evidence by resorting to Sections 65 and 66 of the Indian Evidence Act, 1872. In this regard, he has relied upon judgments of this Court in "Kashmir Kaur v. Sukhwant Kaur and others, 2006 (2) RCR (Civil) 683" and "Sham Lal v. Piare Lal and others, 1986 (2) CurLJ 144".
On the contrary, learned counsel for the respondents has argued that since the case is at the stage of evidence in which the plaintiff has taken 27 adjournments but have not given any explanation about the existence of the original of the compromise, therefore, they cannot be permitted to lead secondary evidence.
In this regard, he has relied upon the judgment of the Madras High Court in "K. Kallan (died) and others v. M. Kallan and others, 2007 (5) RCR (Civil) 42" and a judgment of this Court in the case of "Gopal Singh v. Shish Pal and others, 2006 (2) RCR (Civil) 79".
This argument of both the counsel for the parties is also examined.
Section 62 of the Act defines as to what are the documents which are called primary evidence and Section 63 of the Act talks about the secondary evidence. Section 65 of the Act provides the circumstances in which secondary evidence relating to a document may be given. Section 66 of the Act is relating to the notice to produce the secondary ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -11- evidence, if it is in possession of a third party.
It is the case of the petitioner that after the agreement of compromise was entered into between the parties, original was kept in the safe custody of their brother-in-law namely; Kharaiti Lal and photo copy was retained by the petitioner. This fact is also denied by the respondents in their reply. Now the question would arise that in such circumstances, whether the petitioner could be allowed to lead secondary evidence or not? According to the petitioner, the original document exists and if the permission is granted to him, he would issue a notice under Section 66 of the Act to Kharaiti Lal for its production because it is allegedly in his possession and then he could lead evidence as per Section 65 of the Act.
The judgments relied upon by learned counsel for the petitioner in this regard are applicable as in the case of Kashmir Kaur (supra), this Court had held that if the original document of the compromise with the plaintiff, who is not producing the same, the defendant possess the photocopy of the compromise and seeking permission to lead secondary evidence, cannot be denied the permission but he shall be required to prove the authenticity and genuineness of the photocopy of the document which is sought to be proved by way of secondary evidence.
Similarly, in the case of Sham Lal (supra), it was held by this Court that where an application is filed for proving the compromise by way of secondary evidence and the Court has not framed any issue in this regard, then the order of the Court has to be set aside.
In so far as the judgments relied upon by learned counsel for ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -12- the respondents are concerned, in the case of K. Kallan (supra), the Madras High Court has held that the Xerox copy of registration copy of the sale deed is inadmissible in evidence when there is no explanation offered regarding non filing of original sale deed or even a registration copy of it and to let in secondary evidence.
This judgment is not applicable because of the reason that in the present case the original copy is stated to be in the possession of Kharaiti Lal and he is not producing the same as it was kept in his safe custody being relation of both the parties. If notice is issued under Section 66 of the Act, he had to react and if he would not produce the document accordingly, the Court would decide in accordance with law.
In so far as the judgment of this Court in the case of Gopal Singh (supra) is concerned, the Court has said that photocopy of a document produced in the Court is not admissible unless and until its existence is proved.
Again the judgment is not applicable because in the first issue, the petitioner has to prove the existence of the document and when existence is proved, the document can be brought on record.
Thus, the second question is also decided in favour of the petitioner holding that when the Court would decide the existence and allow the party to lead evidence in the Court for its existence, the Court may allow the party to lead secondary evidence by producing the photocopy if the original is not produced by the person alleged to be in possession thereof.
At the end, learned counsel for the respondent has argued that ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document CR No. 2770 of 2013 -13- even the compromise is not in consonance with the provisions of the Contract Act, 1872.
At present, I am not dealing with this issue. Once the existence of the agreement is proved in the Court and the petitioner is successful in producing the document by secondary evidence or otherwise, the question raised before me could be raised before the trial Court. Supposing the plaintiff fails to prove that there is compromise between the parties, then this question would not arise at all, however, if the compromise is proved, it is always upon to the respondent to challenge the compromise on the ground available to him.
With these observations, the present revision petition is allowed. The case is remanded back to the learned trial Court for framing an issue with regard to the existence of the agreement for the purpose of holding an enquiry. The trial Court would grant only three opportunities to each party to lead their evidence to prove the issue now frame by it, so that the suit, which is pending since long, should come to an end as early as possible.
(Rakesh Kumar Jain) Judge 9.9.2014 Ashwani ASHWANI KUMAR 2014.10.06 15:26 I attest to the accuracy and integrity of this document