Gujarat High Court
Anil Dharamsing Taneja vs Kantibhai Gandabhai Patel & 13 on 12 August, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/14810/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14810 of 2013
With
CIVIL APPLICATION NO. 7952 of 2014
In
SPECIAL CIVIL APPLICATION NO. 14810 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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ANIL DHARAMSING TANEJA....Petitioner(s)
Versus
KANTIBHAI GANDABHAI PATEL & 13....Respondent(s)
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Appearance:
MR MIHIR J THAKORE, Senior Advocate with MR TATTVAM K PATEL,
ADVOCATE for the Petitioner(s) No. 1
MR AB MUNSHI, ADVOCATE for the Respondent(s) No. 1 - 8
MR SAURABH SOPARKAR, Senior Advocate with MR ASHISH M DAGLI,
ADVOCATE for the Respondent(s) No. 9 - 14
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 12/08/2014
Page 1 of 25
C/SCA/14810/2013 JUDGMENT
ORAL JUDGMENT
1. In this petition filed under Article 226/227 of the Constitution of India, the petitioner has challenged the order dated 19.9.2013 passed in Recall Application No. 40 of 2012 by the learned Additional Civil Judge, Surat.
2. The petitioner is the original plaintiff who had preferred Regular Civil Suit No. 702 of 1991 in the Court of the learned Civil Judge (S.D.) at Surat for permanent injunction seeking to restrain the original defendants (No.1 deceased Gandabhai Govanbhai and No.2 deceased Hanskamal Atamprakash Grover) from entering and taking forcible possession of the suit land and for further restraining the defendants from preventing the plaintiff to enter and make use of the suit land, from executing any agreement to sell ("Satakhat" for short) and from transferring the suit land ad- measuring 50941 square yards (42590 square meters) of Survey No. 596 situated at village Vesu, Sub District Choryasi, District Surat.
3. The suit was disposed of by order dated 25.12.1999 on the basis of the compromise purshis at Exh. 49 and the decree was ordered to be drawn in terms of the compromise purshis.
4. The petitioner - original plaintiff preferred the Recall Application No. 40 of 2012 on 5.4.2012 with a prayer to declare that the decree passed in the suit is not binding to him and also to declare that by the said decree, his rights under the Satakhat are neither frustrated nor destroyed. Further prayers are made to set aside the decree, to revive the order on Exh.5 in the suit, and to hear and decide the suit on its own merits. Incidental prayers are also made to restrain the opponents, who are many in number, Page 2 of 25 C/SCA/14810/2013 JUDGMENT from making any further document(s) on the basis of the decree and to stay the proceedings of Regular Execution (Darkhast) No.12 of 2011, to declare all writings, agreements or other documents as null and void and not binding to the plaintiff. The above said recall application was preferred mainly on the ground that the plaintiff has not signed the compromise purshis dated 11.10.1999 and the decree was obtained by forging his signature on compromise purshis by one Jamnadas Halatwala and deceased Hanskamal Atamprakash Grover (defendant No.2) in collusion with deceased Gandabhai Govanbhai and such decree was beyond the subject matter of the suit. Such decree is, therefore, illegal, invalid and fraudulent and against the interest of the plaintiff. Cause of action given in the recall application is that when the plaintiff was served with the summons on 20.4.2011 of execution application (Darkhast) no.12 of 2011 preferred by opponent no.23 of the recall application named Nareshbhai Kikubhai Desai, he made application on 28.4.2011 to the Executing Court to call for the original record and after getting the documents produced in the Darkhast, he came to know about the fraud committed.
5. The learned Judge rejected the recall application by order dated 19.9.2013 by reaching to the conclusion that it was not possible to believe that the compromise was made fraudulently. The learned Judge also recorded that under Order 23, Rule 3 of the Code of Civil Procedure, ("the Code" for short) it was permissible to make settlement in respect of the matters even beyond the subject matter of the suit.
6. I have heard the learned Advocates for the parties.
7. Learned Senior Advocate Mr. Mihir J.Thakore appearing with Page 3 of 25 C/SCA/14810/2013 JUDGMENT learned advocate Mr. Tatvam K. Patel for the petitioner submitted that when it was the specific case of the petitioner supported by his own evidence and the evidence of the hand writing expert that the petitioner has not signed the compromise purshis, such case was required to be accepted in absence of any rebuttal from the other side, otherwise, it was incumbent upon the learned Judge to send the compromise purshis for expert opinion of the Government recognized institution. Mr. Thakore submitted that so far as the petitioner is concerned, he had discharged his burden by giving evidence that he had never signed the compromise purshis and, therefore, it was for the opponents to prove by examining either advocates for the parties in the suit or by examining widow of the deceased Hanskamal Atamprakash Grover for whose benefit the compromise was allegedly made, that it was the petitioner who remained present with his advocate and signed the compromise purshis. Mr. Thakore submitted that till the petitioner was served with the summons on 20.4.2011 of the Darkhast No.12/11 preferred by opponent no.23 of recall application in whose favour the rights were assigned, the petitioner was in fact not aware about the disposal of the suit on the basis of the alleged compromise purshis and, therefore, there was no reason for the petitioner to file recall application at any earlier point of time. Mr. Thakore submitted that it is only after the summons in the above said Darkhast was served to the petitioner, the petitioner started inquiring into the matter with the concerned Court and on inquiry, he came to know that the suit was disposed of on the basis of compromise purshis which was never signed by him. Mr. Thakore submitted that the petitioner had no knowledge about the earlier Darkhast No.49 of 2006 in respect of which it was alleged that on petitioner refusing to accept the summons of the said Darkhast, the summons was served to the petitioner by affixing. Mr. Thakore Page 4 of 25 C/SCA/14810/2013 JUDGMENT submitted that the fraud vitiates everything and, therefore, limitation or delay would not come in the way of the petitioner in preferring the recall application. Mr. Thakore submitted that the proceedings of the suit clearly reveal that it was in absence of the petitioner the suit was taken up and disposed of on the basis of the alleged compromise purshis. Mr. Thakore submitted that Order 23 Rule 3 of the Code mandates that for compromise to be lawful, it has to be in writing and signed by all the parties. Mr. Thakore submitted that the learned Judge is also required to be satisfied that the compromise is lawful and duly signed by the parties and only then decree in terms of compromise can be passed. Mr. Thakore submitted that when the petitioner has never signed the compromise purshis, no decree on the basis of compromise purshis could have been passed in the suit. Mr. Thakore submitted that it is the specific case of the petitioner that neither the petitioner had given authority to his advocate to get the suit disposed of on the basis of compromise purshis nor even the petitioner was present when the compromise purshis was placed before the Court. Mr. Thakore submitted that it was uncommon for the advocate of the petitioner to write "with the power to settle"
while signing the compromise purshis, if the petitioner had put his signature. Mr. Thakore submitted that the advocate for the party would be required to make such endorsement only when the party is either not present before the Court when the compromise is arrived at or is not signatory to the compromise purshis. Mr. Thakore submitted that when the petitioner was alleged to have signed the compromise purshis, there was no necessity for endorsement by the advocate of the petitioner. Therefore, the endorsement by the advocate clearly establish that the petitioner was neither present nor he signed the compromise purshis. Mr. Thakore submitted that to find out the truth as regards Page 5 of 25 C/SCA/14810/2013 JUDGMENT genuineness of the signature of the petitioner on the compromise purshis, the compromise purshis was required to be sent for the opinion of the Hand Writing Expert and even at this stage, no prejudice will be caused to the opponents if this Court orders to send it for expert opinion. Mr. Thakore submitted that the learned Judge for the reasons not germane for decision on the issue as to the lawfulness of the compromise, rejected the recall application. Mr. Thakore submitted that if the evidence of hand writing expert examined by the petitioner and his report was not acceptable, the learned Judge ought to have sent the compromise purshis for the opinion of the Government hand writing expert. Mr. Thakore submitted that learned Judge has failed to exercise the jurisdiction in the facts of the case, and therefore the impugned order is required to be interfered with by this Court in exercise of the powers under Article 226/227 of the Constitution of India.
8. As against the above arguments, learned Senior Advocate Mr. Saurabh Soparkar appearing with learned advocate Mr. Ashish M. Dagli for respondents No. 9 to 14 submitted that the recall application is nothing but a dishonest attempt on the part of the petitioner to get undue advantage by keeping the property in dispute because the worth of the properties has gone much beyond his expectation. Mr. Soparkar submitted that the suit was of the year 1991 wherein the compromise was recorded in the year 1999 and the recall application was filed by the petitioner in the year 2012. From the date of the suit, more than 22 years have passed and now the plaintiff wants the Court to examine whether there was genuine compromise between the parties or not. Mr. Soparkar submitted that not only the rojkam of the suit which is duly signed by the learned Judge reveals that the parties including the petitioner and other advocates were present when the Page 6 of 25 C/SCA/14810/2013 JUDGMENT compromise purshis was submitted but the order dated 25.10.99 passed by learned Judge based on the compromise purshis dated 11.10.99 clearly records the presence of the plaintiff and his advocate. Mr. Soparkar submitted that the rojkam duly signed by the judicial officer as also the order passed by the learned Judge are conclusive proof of what is recorded therein unless the same is dislodged by the other side by cogent evidence. Mr. Soparkar submitted that the petitioner has failed to disprove contents of the rojkam as also of the order dated 25.10.1999, and therefore, for all purposes, compromise is required to be taken as lawful. Mr. Soparkar submitted that it is not correct that the petitioner had no knowledge about the disposal of the suit in the year 1999 based on compromise purshis. Mr. Soparkar submitted that it has come in the evidence before the learned Judge in recall application that the summons of Darkhast No.49 of 2006 was sent to the petitioner, which on refusal of the petitioner to accept, was served on him by affixing and thus, the petitioner had full knowledge about the order of the learned Judge in the suit at least in the year 2006. Mr. Soparkar submitted that for about five years thereafter, the plaintiff did not take any action. Mr. Soparkar submitted that even after the petitioner was served with the summons of Darkhast No.12 of 2011 preferred by opponent no.23 of the recall application on 20.4.2011, the petitioner did not file recall application for a long period of about one year. Mr. Soparkar submitted that nobody would wait for such a long period of one year for filing appropriate application before the Court of law for urgent relief after finding that he is victim of fraudulent act. Mr. Soparkar submitted that the recall application is not only full of falsehood but even in the deposition, the petitioner has spoken many lies. Mr. Soparkar submitted that in deposition, the petitioner stated that he is not aware about what is called recall Page 7 of 25 C/SCA/14810/2013 JUDGMENT application and about transactions taken place and still however, he filed recall application and has also given details about various sale transactions took place through registered sale deed between 2000 to 2010 in respect of the suit land. Mr. Soparkar submitted that it is not possible to believe that so many persons would enter into transactions during the above said period by paying huge amount if they were not to get any right, title or interest in the suit land. Mr. Soparkar submitted that during the long time of more than twelve years after the decree was passed on the basis of the compromise purshis, suit properties have changed many hands and irreversible situation has arisen and such all transactions are entangled just because the plaintiff has come out with recall application simply alleging that he had never signed the compromise purshis. Mr. Soparkar submitted that strangely the petitioner selected private hand writing expert and got his specimen signature compared with the signature on the xerox copy of the compromise purshis and the opinion of such so called hand writing expert was sought to be relied on. Mr. Soparkar submitted that the learned Judge has rightly discarded such evidence of the hand writing expert. Mr. Soparkar submitted that if the petitioner had never signed the compromise purshis, he would not have gone for opinion of the private hand writing expert but would have definitely urged the learned Judge to send the compromise purshis for opinion of the Government Hand Writing Expert. Mr. Soparkar submitted that the petitioner never wanted the original record of the suit to come before the learned Judge for deciding his recall application. Mr. Soparkar submitted that when respondents no.9 to 14 preferred application Exh. 88 on 1.8.2013 requesting the learned Judge to call for original record of the suit by stating that it was very much necessary for deciding the recall application, learned advocate for the petitioner made endorsement Page 8 of 25 C/SCA/14810/2013 JUDGMENT "without prejudice to the right of the petitioner to the hand writing expert's opinion, the Court may pass necessary order." However, thereafter, the petitioner did not cooperate for passing necessary orders on the said application. In fact, the petitioner could have invited order on the said application for immediately calling the original record of the suit and could have made necessary application to send the original compromise purshis for the opinion of the Government Hand Writing Expert. But the petitioner never wanted such action to be taken and, therefore, he went on taking time till the Court made order on Exh.88 on 13.9.2013 to call for the record. Mr. Soparkar submitted that simply because the advocate for the petitioner has put endorsement "with the power to settle" with his signature on the compromise purshis is no ground to suggest that the petitioner had not signed the compromise purshis. Mr. Soparkar submitted that it was for the petitioner to examine his own advocate or advocate for the other side and widow of defendant no.2, one of the opponents in the recall application to prove his case. Mr. Soparkar submitted that the petitioner in fact knew that if he had examined the above said persons as witnesses, perhaps their evidence would have gone against him and, therefore, he had chosen not to examine them as witnesses to prove his case. Mr. Soparkar submitted that one more conduct of the petitioner needs to be considered. Learned Judge since did not issue notice to the advocate of the petitioner, the petitioner preferred Special Civil Application No.5965 of 2012, however, he unilaterally withdrew it with a view to persuade the Court below to issue notices to other opponents. Mr. Soparkar submitted that if the petitioner wanted to unearth the truth, the petitioner would have either continued to prosecute the above said petition or would have persuaded the Court below to issue notice to his advocate or at least could have examined his advocate as Page 9 of 25 C/SCA/14810/2013 JUDGMENT witness. The petitioner did nothing which goes to suggest that the petitioner filed recall application with ulterior motive.
9. Mr. Soparkar submitted that the petitioner even did not give any notice to his advocate or filed any complaint against him alleging that he was party to fraudulent act. Mr. Soparkar submitted that having come to know in April, 2011 about the disposal of the suit on the basis of compromise purshis, the petitioner could have immediately filed recall application. Mr. Soparkar submitted that in fact, no explanation was given for such delay in the recall application by the petitioner. Mr. Soparkar submitted that no attempt was made even to examine the Court Master who recorded the rojkam as regards proceedings of the suit. Mr. Soparkar submitted that even as regards service of summons in connection with the Darkhast No. 49 of 2006, petitioner made no attempt to disprove the contents of the rojkam of Darkhast No. 49 of 2006 produced in evidence in the recall application from the side of the opponents. Mr. Soparkar thus urged that since the learned Judge has taken possible view of the matter after appreciation of the matter, this court would not like to sit in appeal over such decision of the learned Judge while exercising the powers under Article 226/227 of the Constitution of India. Mr. Soparkar, thus, urged to dismiss the petition.
10. Learned Advocate Mr. A.B. Munshi appearing for respondents No.1 to 8 stated that his stand is neutral in as much as he is neither supporting the case of the petitioner nor even respondents no.9 to 14 and urged to pass appropriate order.
11. Having heard the learned advocates for the parties, it appears that on 11.10.1999 when the suit of the plaintiff was Page 10 of 25 C/SCA/14810/2013 JUDGMENT taken up on board at the request of the learned advocate for the defendants, compromise purshis dated 11.10.1999 Exh.49 was submitted. There is no dispute about the fact that the compromise purshis was signed by the Advocate of the petitioner. However, it is the case of the petitioner that he had not given any authority to his advocate Mr. Halatwala to enter into compromise and without his knowledge, Mr. Halatwala put endorsement "for plaintiff with power to settle" and such endorsement shows that the compromise was made in his absence and against his interest. Below the signature of the advocate of the petitioner, there appears to be the signature of Advocate for the defendant, Shri Vijay Kazi and below his signature, the order of "kept for hearing"
appears to have been made by the learned Judge on 11.10.1999.
12. It is found stated in the compromise purshis at Annexure-C that the defendant No.1 (original owner) had agreed to sell the suit property by executing Satakhat dated 16.2.1989 to defendant No.2. The sale price was fixed at Rs.81.00 per square yard. Considering the total area of the land 50941 square yards, total value of the land was arrived at Rs.41,26,221.00 It is further stated that the defendant No.2 had paid to defendant no.1 towards the Satakhat an amount of Rs.17,26,221.00, and giving set off of the said amount, amount of Rs.24,00,000.00 remained to be paid, which defendant No.2 paid to defendant No.1 by 16 different demand drafts (and 'cheque' appears to be scored of) for different amounts to make it total Rs.24,00,000.00 as per the details provided in the said purshis. It is further found stated that the defendant no.1 acknowledged receipt of the said amounts and handing over of possession of the land to defendant no.2. Defendant No.1 agreed to execute sale deed in favour of defendant no.2 his nominees. For the convenience of the Page 11 of 25 C/SCA/14810/2013 JUDGMENT defendant No.2 to get the sale deed executed, defendant No.1 also executed irrevocable general power of attorney in favour of defendant No.2.
In third paragraph of the compromise purshis, it is found stated that since the defendant no.1 was not agreeable to make sale deed in favour of defendant no.2 and since defendant no.2 did not want to spoil relationship with defendant no.1, defendant no.1 had executed agreement to sell dated 16.5.1989 in favour of the plaintiff and got the suit filed through the plaintiff before the civil court but the said satakhat is now not to be implemented. The plaintiff is not desirous to purchase the suit land on the basis of the said satakhat, therefore, he waives his rights in favour of the defendants. The amount stated in the satakhat is refunded by defendant no.2 to the plaintiff. Now, there remains no direct or indirect interest of the plaintiff in the suit land. Plaintiff is agreeable in defendant No.1 selling the land to defendant No.2 or his nominees and his irrevocable consent is to be taken by this compromise decree.
13. On compromise purshis, at left side middle portion of every page and at right side below just against the signature of the advocate Mr. Halatwala the petitioner is alleged to have signed. However, it is the case of the petitioner that he has never signed the compromise purshis.
14. In the rojkam of the suit recorded on 11.10.1999, the parties and learned advocates are shown present. On that very day, the documents at Exh.43 to 49 presented are referred in the rojkam. Compromise purshis at Exh. 49 amongst them is the bone of contention between the parties. As per the rojkam, the suit was Page 12 of 25 C/SCA/14810/2013 JUDGMENT adjourned to 16.10.1999 for hearing and passing order on Exh. 49. Then, on 16.10.1999, it was adjourned to 25.10.1999. In the rojkam dated 25.10.1999, it is mentioned that the parties and advocates are present, the court has recorded Exh.49 and passed order below Exh. 1 (plaint) and to draw decree as per Exh.49.
15. Above minutes of the proceedings of the suit drawn in the rojkam on 11.10.99, 16.10.99 and 25.10.99 were duly signed by the then 5th Jt. Civil Judge (JD) and JMFC, Surat.
16. On 25.10.99, the order passed by the learned Judge below Exh. 1 in the suit reads as under:
"Plaintiff Advocate and defendant No.1's Advocate and defendant No.2 is remained present. They made compromise out of the Court. They filed compromise purshis vide Exh. 49 hence in view of the compromise purshis, suit is disposed of. Decree be drawn in terms of compromise.
No order as to costs."
17. Learned Judge found that on compromise purshis, order of "kept for hearing" was made on 11.10.1999 and then by order dated 25.10.1999, the suit was disposed of by recording compromise. Learned Judge also found from the rojkam of the suit that the parties and the advocates were present on 11.10.1999. Learned Judge, thus, observed that whatever care was required to be taken before passing the order on compromise was taken by the Court.
It is required to be noted that rojkam and order signed by Judicial Officer are public documents, within the meaning of section 74(1) (iii) of the Evidence Act,1872 and, therefore, strong and cogent proof is required to disprove the contents recorded therein.
Page 13 of 25C/SCA/14810/2013 JUDGMENT
18. The petitioner has filed recall application after a period of about more than 12 years alleging that he has not signed the compromise purshis and the decree was obtained by fraud. Reason given by him for filing the recall application after such long period is that he came to know about passing of the decree in his suit on 20.4.2011 when he was served with the summons of Darkhast No. 12 of 2011 and came to know about the fraud when he received copies of document produced in the Darkhast. However, even then, the petitioner did not file recall application for a period of about one year.
19. In his cross examination, the petitioner has stated that after 20.4.2011, he consulted advocate Shri Kapadia in the month of May, 2011. He admitted that he stated to Mr. Kapadia that bogus decree was passed against him. He has further stated that he is not aware that he has filed any complaint in respect of the land in question and he has not read the compromise purshis dated 11.10.99 till the date of the petition. He has also stated that he neither gave any notice to his advocate Mr. Halatwala nor filed any complaint against him.
20. The opponents No.9 to 14 have examined Shri Pankajbhai B. Desai as their witness through him, copy of rojkam of Darkhast No. 49 of 2006 to show service of summons by affixing on the petitioner was produced at Exh.74. After perusing the rojkam, learned Judge has observed that as per the rojkam, after the notice came back unserved, notice to new address was sent but the petitioner refused to accept and it was served to him by affixing. Learned Judge further observed that the onus to rebut the contents of rojkam was on the petitioner but the petitioner has not made any attempt in the recall proceedings for the production of Page 14 of 25 C/SCA/14810/2013 JUDGMENT the notice or endorsement of bailiff on the record of said Darkhast No.49 of 2006, therefore, it is not possible to believe that the petitioner had no knowledge of the notice or the rojkam. There appears to be no error in above observation of learned Judge. The petitioner could have applied for issuance of summons for production of record of the said Darkhast and also for examining the bailiff. He failed to do so. Therefore, it is not possible to believe that the petitioner had no knowledge about passing of the compromise decree till he was served with summons of Darkhast No.12 of 2011.
21. The conduct of the petitioner plays very important role to judge whether he had no knowledge about the compromise purshis and order made by the learned Judge below application Exh.1 in the suit. The petitioner has stated in his deposition that after the year 1994, he had never gone to the office of his advocate Shri Halatwala. He has stated that Shri Halatwala was also his advocate for another suit being RCS No. 701 of 1991. If the say of the petitioner that he had never gone to the office of his advocate Shri Halatwala after 1994 is considered, it comes to that for about five years till the compromise was recorded in the year 1999 and thereafter for more than 12 years, in all for total 17 years, the petitioner was not in contact of his advocate though he is in the same city. From the the point of view of normal conduct, it is difficult to believe that the petitioner would have remained non interested in the proceedings of the suit for such a long time.
22. The normal conduct of a person alleging fraudulent act of forging his signature affecting his rights would be that he would waste no time to request the learned Judge to immediately call for Page 15 of 25 C/SCA/14810/2013 JUDGMENT the original record of the suit to send the original compromise purshis for the opinion of the Government Hand Writing Expert to find out whether the compromise purshis bears his signature. The petitioner neither made any application seeking order to find out and call for original record and to send original compromise purshis for the opinion of the Government Hand Writing Expert. Such application was in fact made by respondents No. 9 to 14 at Exh. 88 stating that the original record lying with the Special Task Force, 6th Floor, Room No.140 be called as it would be helpful for deciding the recall application. On such application, surprisingly, the advocate for the petitioner Mr. Kapadia made the following endorsement:
"Without prejudice to the applicant's right and hand writing expert's opinion, correction, necessary order may be passed."
23. If the petitioner was interested to see that the original record was called for immediately, on that very day, he could have invited the order to call for the record. From the rojkam of recall application, it appears that on many occasions, the petitioner asked for time and the application Exh. 88 remained undecided till 13.9.2013. On 13.9.2013, learned Judge made order to call for the original record of the suit. It is not in dispute that the original record was available. However, till the impugned order was made on 19th September,2013, no application was made by the petitioner to send the original compromise purshis for the opinion of the Government hand writing expert.
24. It appears that the petitioner was satisfied with the opinion of the Private hand writing expert on which he relied before the Court by examining Shri Kapilkumar who had given his opinion by examining and comparing natural and specimen signatures of the Page 16 of 25 C/SCA/14810/2013 JUDGMENT petitioner with his signatures on the xerox copy of the compromise purshis. Learned Judge has discarded the evidence of this hand writing Expert. In his chief examination, he has stated that he acquired degree in Master of Science (Forensic) in the year 2005 from Agra University. He joined the office of Mr. J.J. Patel, Retired Acting Chief Examiner of questioned document, F.S.L. from the year 2006 and has given many opinions as expert. He has stated that the petitioner made application on 01.05.2012 to the head of his office Shri J.J. Patel. He has further stated that he was given five documents in xerox, out of which one was of disputed signatures, three were of natural signatures and one was of specimen signature. He examined and compared the disputed signatures with natural and specimen signature and opined that the disputed signatures appeared to be forged and not genuine.
In his cross examination, he has admitted that as per his degree, he is qualified for lecturership. He has also admitted that he has no certificate of hand writing expert. He has admitted that he has not seen any original record.
The above such evidence has been rightly discarded by the learned Judge.
25. Mr. Thakore however submitted that sole and simple issue is as to whether the compromise purshis is signed by the petitioner or not and, therefore,no prejudice will be caused to other side, if the compromise purshis is now sent for opinion of hand writing expert. Such request cannot be accepted at this stage in the facts of the case as discussed above.
26. At this stage, it is required to be noted that though the Page 17 of 25 C/SCA/14810/2013 JUDGMENT petitioner himself in his recall application has given details about different sale transactions took place between 2000 to 2006 and 2007 to 2010 in respect of the suit land, however, in his deposition, he has stated that he has no knowledge in respect of any sale transaction. The suit land having changed many hands,it cannot be said that no prejudice will be caused to the other-side if the compromise purshis is sent for expert opinion at this stage.
27. The learned Judge has come to the conclusion that the evidence of hand writing expert and of the petitioner is not conclusive and since no supporting evidence is given, it is not possible to believe that the compromise was fraudulent and without signature of the petitioner. Learned Judge has committed no error in arriving at such conclusion especially when the petitioner has failed to disprove the contents of rojkam and the order dated 25.10.1999. The learned Judge is also right in observing that even if the compromise was beyond the scope of the suit, same was permissible under Order 23, Rule 3 of the Code.
Order 23, Rule 3 of the Code reads as under:
"O.23. 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 satisfies 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 Page 18 of 25 C/SCA/14810/2013 JUDGMENT denied by the other than 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 avoidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule."
28. In the Case of Byram Pestonji Gariwala v. Union Bank of India and others reported in AIR 1991 SC 2234(1), Hon'ble Supreme Court held and observed in para 37 to 40 as under:
"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 recognised 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 authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and Page 19 of 25 C/SCA/14810/2013 JUDGMENT 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 authorised 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.
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, 1976, must necessarily mean, to borrow the language of Order II1 rule i C.P.C.:
"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)"
29. In the case of Salil Dutta versus T.M. And M.C.Private Limited reported in (1993) 2 SCC page 185, Hon'ble Supreme Court held and observed as under in para 8:
Page 20 of 25C/SCA/14810/2013 JUDGMENT "The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hewing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they 'chose to non-cooperate with the court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence.
Putting the entire blame upon the advocate and trying to make it. out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted."
30. In the case of Banwari Lal v. Smt. Chando Devi (through L.R.) and another reported in AIR 1993 SC 1139, Hon'ble Supreme Court held and observed as under in para 11 to 14:
"11. The present case depicts as to how on 27.2.1991 the Court recorded the alleged agreement and compromise in a casual manner. It need not be impressed that Rule 3 of Order 23 does not require just a seal of approval from the Court to an alleged agreement or compromise said to have been entered Page 21 of 25 C/SCA/14810/2013 JUDGMENT into between the parties. The statute requires the Courts to be first satisfied that the agreement or compromise which has been entered into between the parties is lawful, before accepting the same. Court is expected to apply its judicial mind while examining the terms of the settlement before the suit is disposed of in terms of the agreement arrived at between the parties. It need not be pointed out that once such a petition of compromise is accepted, it becomes the order of the Court and acquires the sanctity of a judicial order.
12. On behalf of the respondent a stand was taken that the learned Subordinate Judge by his order dated 20.9.1991 could not have recalled the order dated 27.2.1991 and restored the suit to its original number. It cannot be disputed that the respondent can support the order of the High Court setting aside order dated 20.9.1991 on any other reason than the reason given by the High Court.
13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that where it is alleged by one party and denied by other that an adjustment or satisfaction has been arrived at, "the Court shall decide the question", the Court before which a petition of compromise is filed and which has recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule. In view of the proviso read with the explanation, a Court which had entertained the petition of Compromise has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable against an order recording a compromise. As such a party challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the Code.
14. The application for exercise of power under proviso to Rule 3 of Order 23 can be labeled under Section 151 of the Code but when by the amending Act Page 22 of 25 C/SCA/14810/2013 JUDGMENT specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. It has been held by different High Courts that even after a compromise has been recorded, the Court concerned can entertain an application under Section 151 of the Code, questioning the legality or validity of the compromise. Reference in this connection may be made to the cases Smt. Tarn Bai v. V.S. Krishnaswamy Rao AIR 1985 Karnataka 270, S.G. Thimmappa v. T. Anantha , Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh , Mangal Mahton v. Behari Mahton and Sri Sri Iswar Gopal Jew v. Bhagwandas Shaw , where it has been held that application under Section 151 of the Code is maintainable. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question was lawful and not void or voidable under the Indian Contract Act. If the agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly justified in entertaining the application filed on behalf of the appellant and considering the question as to whether there had been a lawful agreement or compromise on the basis of which the Court could have recorded such agreement or compromise on 27.2.1991. Having come to the conclusion on the material produced that the compromise was not lawful within the meaning of Rule 3, there was no option left except to recall that order. "
31. In the case of Jineshwardas (D) by LRs and others versus Smt. Jagrani and another reported in AIR 2003 SC 4596, Hon'ble Supreme Court has held and observed in para 7 as under:
"7. 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 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 Page 23 of 25 C/SCA/14810/2013 JUDGMENT 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."
32. In light of the above, if the facts of the present case are considered, the compromise purshis does bear not only signature of the advocate of the petitioner but it also bears the signatures of the advocate for the defendants with signature of the parties. Though the say of the petitioner is that he has never signed the compromise purshis, it is required to be noted that the petitioner has not issued any notice to his advocate nor even made any complaint against him as regards his authority to sign the Page 24 of 25 C/SCA/14810/2013 JUDGMENT compromise purshis. The Trial Court has on appreciation of evidence, not accepted the say of the petitioner that the compromise was fraudulently made. In such fact situation, the advocate for the petitioner could not be said to have acted contrary to the authority given to him by the petitioner. When the advocate of the petitioner, Mr. Halatwala has signed the compromise purshis and the petitioner when not issued any notice to him or filed complaint against him, there is no reason to doubt the genuineness of the compromise purshis. In such view of the matter, no interference is called for in the impugned order in exercise of powers under Article 226/227 of the Constitution of India. The petition is, therefore, dismissed. Rule is discharged. Interim relief, if any, stands vacated.
33. In view of the disposal of the main matter, the Civil application will not survive, hence disposed of.
34. At this stage, learned advocate Mr. Patel requests to stay and suspend the present order for a period of four weeks. However, considering the fact that there was no interim order made in the present petition and this court having confirmed the view taken by the learned Judge, it would not be proper to stay and suspend the present order. Hence the request is rejected.
(C.L.SONI, J.) anvyas Page 25 of 25