Delhi High Court
Sh. Krishan Mohan Singh vs Sri Chand Gupta And Others on 17 March, 1993
Equivalent citations: AIR1993DELHI365, 50(1993)DLT239, AIR 1993 DELHI 365, 1993 (2) LJR 58, 1993 CHANDLR(CIV&CRI) 486, (1994) 1 CIVILCOURTC 232, (1993) 2 PUN LR 38, (1993) 2 RECCRIR 141, (1993) 2 RRR 274, (1993) 2 CIVLJ 769, (1993) 2 CURCC 11, (1993) 50 DLT 239
JUDGMENT
1. This appeal is directed against the order of an Additional District Judge dated September 21, 1991 by which he had recalled the previous order made on the basis of the statements made by the parties in Court.
2. Facts, in brief, are that Sri Chand Gupta, respondent No. 1, had brought a suit for injunction against the appellant taking the plea that he is the tenant in the premises in question and the appellant is threatening to raise unauthorised constructions which would effect his demised premises. A temporary injunction was granted by the Lower Court and appeal was brought against that order which came up for hearing before Shri V.S. Aggarwal, Additional District Judge.
3. On July 16, 1988, a joint statement of Shri J.K. Seth, Advocate for the appellant and Shri J.K. Jain, Advocate for the respondents, Sri Chand Gupta, Chand Narain Pandey and Narinder Singh and of Sri Chand, respondent No. 1, and Krishan Mohan Singh, appellant, was recorded which is to the following effect :--
"The matter has been settled. In shop No. 1402, Bazar Gulian, Dariba Kalan, Delhi, the tenants are Sh. Naresh Chand and Jaswant Singh, sons of Siri Chand Gupta. The landlord is Krishan Mohan Singh. The landlord has no objection if the father of the tenants mentioned above in the said shop uses the said shop as a Licensee of the tenants. However, the landlord does not permit any other relative of the tenants including their any other brother to use the property and if the same is used by any other person or brothers of the tenants, the landlord will have the right to seek eviction on any of the grounds contemplated under the Delhi Rent Control Act, 1958.
The appeals be allowed and the plaintiffs Siri Chand Gupta, S. Narinder Singh and Chand Narain Pandey withdraw their suits. In case of Chand Narain Pandey, it is not disputed that Angan Lal was also a tenant with Chhotey Lal. Angan Lal has died and his tenancy rights could be inherited by the heirs.
So far as the case of S. Narinder Singh is concerned, his father Darshan Singh was the tenant and his heirs have inherited the rights of tenancy."
4. These statements were signed by, the appellant and Sri Chand Gupta and also their respective counsel, Sh. J.K. Seth and Sh. J.K. Jain. On the basis of the said statements, the order dated July 16, 1988 was made arid appeal was disposed of. There were two other appeals which were also decided along with this order with which we are not cpncqrned.
5. Sri Chand Gupta had moved a petition before the Additional District Judge for recalling the order taking various pleas and by the impugned order, the said petition of Sh. Sri Chand Gupta was accepted.
6. The learned Additional District Judge, in the impugned order, has primarily based his order on the judgment delivered by the Supreme Court in the case os Gurpreet Singh v. Chatur Bhuj Goel, and has held that there must be a separate instrument of agreement duly signed by the parties before the same could be acted upon under Order 23, Rule 3, C.P.C.
7. The Order 23, Rule 3, C.P.C. lays down that 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 the Court shall pass a decree in accordance therewith. However, if an agreement or compromise is void or voidable under the Indian Contract Act 1872 the same will not be deemed to be lawful within the meaning of this rule.
8. The short question which arises for decision is whether the statements which are made by the parties and recorded in the Court's proceedings and are signed by the parties could meet with the requirements of Order 23, Rule 3, C.P.C. which contemplate an agreement or compromise in writing signed by the parties.
9. In the case of Gurpreet Singh (supra), the statements were made and recorded in the judicial proceedings but were not signed by the parties The question which arose for decision before the Supreme Court was whether such statements meet with the requirement of Order 23, Rule3, C.P.C.The Supreme Court, in para 10, had held tha to constitute an adjustment, the agreement or compromise must itself by capable of being embodied in 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.
10. Learned counsel for the respondent Sri Chand Gupta, has vehemently argued that the Supreme Court had clearly laid down that there should be an instrument signed by, the parties, as required by Order 23, Rule 3, C.P.C. only then the compromise could be given effect to by the Court. The word 'instrument' has not been interpreted by the Supreme Court in this judgment. The Supreme Court has also not laid down that an instrument of compromise should be a separate instrument from the proceedings being recorded in the Court.
11. The word 'instrument' has been defined in the words and Phrases, Volume 21 A to mean a document or writing which gives formal expression to legal act or agreement for the purpose of creating, curing, modifying or terminating a right; a writing executed and delivered as the evidence of an act or agreement. It is also mentioned at page 520 of that book that term "instrument" is most frequently used to denote something reduced to writing as a means of evidence, but it may include, not only written instruments and writings, but also engraved and printed instruments. At page 523, it was mentioned that the word "instrument" in a legal sense is defined to be a writing as the means of giving formal expression to some act; a writing expressive of some act, contract, writ, etc. In the Law Lexicon by P. Ramanatha Aiyar, Reprint Edition 1987, the term "instrument" is stated to be used for a deed, writ or other legal proceedings or matter reduced to writing.
12. It is, hence, evident that the word "instrument" by itself would not mean that a separate instrument should be executed. The proceedings recorded in Court which are signed by the parties can be also termed as an instrument in writing. The Supreme Court was dealing with a case where the statements made in the judicial proceedings were not signed by the parties and thus, on the basis of it, the said statements could not constitute a compromise made in writing but where the statements have been made in Court proceedings and have been duly signed by the parties and their counsel, there is no reason why such a writing should not be termed as an instrument as was visualised by the Supreme Court in the aforesaid judgment.
13. The learned District Judge was wrong in interpreting the said judgment in coming to the conclusion that there must be a separate instrument in writing effecting the compromise apart from the proceedings recorded by the Court wherein statements are recorded and are signed by the parties.
14. A similar question arose for decision before Punjab & Haryana High Court in case of Raksha Rani v. Ram Lal, and similar interpretation was given, I respectfully agree with the said judgment given by Division Bench of that Court.
15. The learned counsel for the respondent, Sri Chand Gupta, has placed reliance on Budha Lal v. Sri Ram Chand, in support of his contention that there should be a separate written compromise apart from the proceedings in the Court so that it meets with the requirements of Order 23, Rule 3, C.P.C. I have gone through this judgment and find that this is no a different aspect. In the said case, no agreement or compromise in writing and duly signed by the parties has been produced before the Court. The statements were recorded by the Court and were signed by the parties, but in those statements, the terms agreed upon between the patties were not mentioned. Only a reference was made that a compromise in writing has been duly signed and executed by the parties which compromise was not produced before the Court. In that situation, the Court held that the same did not meet with the requirement of Order 23, Rule3, C.P.C. This judgment is based on different facts and is of no help in taking the case of the respondent any further.
16. Learned counsel for the respondent, Sri Chand Gupta, also made reference to M.C.D. v. Hira Lal, 1991 Raj LR 16. This judgment is at all not applicable to the points in issue before this Court. In the said case, the suit had been dismissed on merits by the Court and later on an application under Order 23, Rule 1, C.P.C. was made seeking to withdraw the suit. The High Court held that once the suit had been dismissed on merits, there could arise no occasion for allowing the suit to be withdrawn by taking resort to the provisions of Order 23, Rule 1, C.P.C. That is not the case here,
17. In the latest judgment given by Supreme Court in Byram Pestonji Gariwala v. Union Bank of India, the Supreme Court has now held that even the compromise can be signed by the counsel and it need not be signed by the parties.
18. In view of the above discussion, I hold that the statements which were recorded by the Court and which were duly signed by the parties and their counsel constitute a written instrument of compromise, as contemplated by Order 23, Rule 3, C.P.C. So, the judgment of the Additional District Judge is to be set aside on this score.
19. Learned counsel for the respondent has vehemently argued that no proper instructions had been given by Sri Chand Gupta to his counsel for making the statement in Court and he also did not understand the contents of the statement recorded by the Court. An affidavit of Sh. J.K. Jain, Advocate has been filed wherein, surprisingly enough, Mr. Jain had made reference to the facts that Sri Chand Gupta was not appearing in the Court proceedings earlier and had not given any prior instructions to him that he would like to withdraw the suit, but it is not understood why Sri Chand Gupta could not give the instructions to counsel on the day he appeared before the Appellate Court and where was the occasion to give any instruction to the counsel when the statement had been recorded and had been signed not only by Sh. J.K. Jain, Advocate but also by Sri Chand Gupta. It is not possible to give any countenance to the plea of Sri Chand Gupta that he never understood the implications of the statement being recorded in the Court proceedings in the presence of his counsel which he signed and which were also signed by his counsel Sh. J.K. Jain, Advocate.
20. Learned counsel for the respondent has also argued that the compromise has not been signed by Jaswant Singh and thus as all the parties have not signed the compromise, the same could not be given effect to. There is no merit in this contention. No adverse order was being made on the basis of the compromise against Jaaswant Singh, so even if Jaswant Singh, who was not contesting the matter, had not signed the compromise, it would not mean that the compromise cannot be enforced between the contesting parties,
21. Another contention raised by learned counsel for the respondent is that Sri Chand Gupta, in the plaint, had set up the case that he was a tenant in the shop, but by virtue of this compromise, his tenancy rights have been given a go by and thus, the compromise is illegal. In replication, Sri Chand Gupta had taken the plea that he had taken this tenancy in the name of his minor sons and that is the fact which had been recorded in the compromise statement. It cannot be said that the compromise arrived at in any manner suffers from any illegality.
22. In view of the above discussion, I allow the appeal and set aside the impugned order and restore the order made by Sh. V.S. Aggarwal, Additional District Judge on July 16, 1988. Parties are, however, left to bear their own costs.
23. Appeal allowed.