Gauhati High Court
Md. Abdullah Khan & Anr vs Intezar Khan & Ors on 3 May, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
CRP 451 of 2010
1. ABDULLAH KHAN
2. MUSST. AKBARI BEGUM .....Petitioners
-Versus-
1. INTEZAR KHAN
2. On the death of Sri Husnain Khan, his LRs
(a) Musst. Afsana Begum.
(b) Sakib Haque.
(c) Biki Haque.
(d) Ms. Rani Begum.
3. SRI AFTAB KHAN
4. On the death of Sri Ibrar Khan, his LRs
(a) Azzu Begum.
(b) Zinnat Begum.
5. SMTI. SAMIMARA BEGUM .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. C. Baruah, Mr. T. Baruah, : Ms. R.R. Baruah.
Advocates for the Respondents : Mr. N.C. Das, Ms. M. Devi, : Ms. A. Das, Ms. B. Begum.
Date of hearing & order : 03.05.2017.
JUDGMENT AND ORDER (Oral)
1) Heard Mr. C. Baruah, learned Senior Counsel for the petitioners as well
as Mr. N.C. Das, learned Senior Counsel for the respondents.
CRP 451/2010 Page 1 of 112) By filing this application under Article 227 of the Constitution of India, the petitioners have prayed for setting aside the order dated 28.09.2010 passed by the learned Munsiff No. 1, Dibrugarh in T.S. No. 110/2006, thereby rejecting the prayer made by the petitioners to pass a compromise decree under Rule 3 of Order XXIII of the CPC in accordance with the terms and conditions written in the Deed of Settlement of Dispute dated 25.06.2010.
3) The learned Senior Counsel for the petitioners submits that in course of the proceedings of T.S. No. 110/2006, the parties had talked for a compromise and the dispute between the parties was settled by entering into the above referred Deed of Settlement of Dispute on 25.06.2010 and in terms of the said settlement, the original respondents herein were also paid a sum of Rs.5,00,000/- (Rupees five lakh only) and in consideration thereof the original respondents herein had withdrawn and relinquished their all claims, contentions and objections in the suit as well as another litigation i.e. RSA No. 41/2001 pending before this Court and the original respondents had also agreed to vacate the suit land and to remove their all belongings therefrom within a time as stipulated therein. It is stated that in the Deed of Settlement of Dispute dated 25.06.2010, the original defendants were represented by one, Abdul Jalil, the constituted attorney of the original respondents. Reference in this order is made to the original respondents because during the pendency of this Revision, the original respondents No. 2 and 4 had died and their legal representatives were substituted and brought on record.
4) By referring to the power of attorney bearing Deed No. 312 registered before the Senior Sub-Registrar, Dibrugarh on 14.06.2010 the original defendants, namely, No. 1 Smti. Sarfun Nissa, No. 2 Sri Intizar Khan, No. 3 Sri Hasnain Khan, No. 4 Sri Aftab Ahmed, No. 4 Sri Abrar Ahmed and Smti. Shamim Begam had nominated, constituted and appointed the said Sri Abdul Jalil as the lawful attorney, having powers to compromise any dispute/case/suit in CRP 451/2010 Page 2 of 11 connection with their landed property, specifically authorization was made to appear and negotiate with the petitioners herein and to enter into the Deed of Settlement or Agreement and their name or their behalf. It is submitted that thereafter, the petitioners had filed a petition before the Trial Court on 07.07.2010 under the provisions of Rule 3 of Order XXIII of the CPC, inter-alia, informing the court that the parties had entered into a Deed of Settlement of their dispute on 25.06.2010 and they have paid the original respondents herein a sum of Rs.5,00,000/- (Rupees five lakh only) and therefore, on the terms and conditions as mentioned in the said Deed of Settlement of Dispute, the suit may be disposed of and a decree may be passed in accordance with the terms and conditions of the said Deed of Settlement of Dispute dated 25.06.2010.
5) The original respondents herein, were directed to be personally present before the court. The respondent No. 1 herein, by filing an objection on 06.09.2010, inter-alia, stated that the defendants were directed to be personally present but their mother has expired on 26.08.2010 and Hasnain Khan (defendant No. 3 in the suit) who was entrusted with the some religious duties in Mosque on Ramjan month could not attend and Aftab Ahmed (defendant No. 4) who went to Moran for some work a few days back could not attend also. It was submitted in their said objection that there was no compromise whatsoever with the plaintiff as falsely alleged by them and neither any payment of Rs.5,00,000/- (Rupees five lakh only) was ever received by them, which are false allegations by the plaintiff and therefore, it was denied that there was any arrangement for compromising the suit or to vacate the ancestral property.
6) The learned Senior Counsel for the petitioner submits that the learned Trial Court without permitting the parties to adduce any evidence, procedure to decide the petition filed under Rule 3 of Order XXIII of the CPC. He submits that the learned Trial Court committed jurisdictional error by arriving at a finding that the compromise alleged to be affected by power of attorney was invalid merely on the basis of the submissions made by the defendants (original respondents CRP 451/2010 Page 3 of 11 herein), denying the execution of compromise. He further submits that the aforesaid order passed by the learned Trial Court is also vitiated by non-exercise of jurisdiction by not permitting the parties to adduce evidence in the matter and wrongly arrived at a conclusion that the defendants did not permit the attorney to contest the case as the defendants were themselves contesting the case, for which the learned Trial Court without entering into the correctness or otherwise of the said compromise acted mechanically in not recording the compromise of the suit.
7) The learned Senior Counsel for the petitioner in order to press his argument has referred to the case of Shanti Budhiya Vesta Patel & Ors. v. Nirmala Jayprakash Tiwari and Ors., 2010 SAR(CIVIL) 442 SCC: (2010) 5 SCC 104 to urge that the power of attorney was a valid document for the purpose of recording a compromise in terms of the power of attorney and therefore, there was no infirmity if in the present case in hand a decree was drawn up on the basis of the Deed of Settlement of Dispute dated 25.06.2010. He also refers to the case of K. Venkata Seshiah vs. Kandura Ramasubbamma, (1991) 3 SCC 338. By relying on paragraph 8 and 9 of the said judgment, it is submitted that if a compromise is genuine, then to the court has no option but to accept the compromise and pass a decree in accordance with the said compromise.
8) The learned Senior Counsel for the petitioner further submits that as this Court is now exercising jurisdiction under Article 227 of the Constitution of India, the scope of this Court can only be to see if the order passed by the learned Trial Court was sustainable without going to the question of validity of the compromise or the validity of the power of attorney based on which the compromise was arrived at.
9) Per-contra, Mr. N.C. Das, learned Senior Counsel for the respondents refers to the provisions of Rule 3 of Order XXIII of the Code and submits that as per the language used in the said provision, it is the mandate of law that a lawful CRP 451/2010 Page 4 of 11 agreement or compromise should be in writing and it must be signed by the parties and only when it is proved to the satisfaction of the court that the suit has been adjusted wholly or in part, the court order such agreement, compromise or satisfaction to be recorded and pass a decree accordingly. The provisions of Rule 3 of Order XXIII of the Code is quoted below:
"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 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."
10) The learned Senior Counsel for the respondents has referred to the affidavit-in-opposition filed on 30.03.2011 and had referred to another suit being T.S. No. 45/2010, pending before the learned Civil Judge, Dibrugarh. However, at this stage, this Court is not inclined to hear the learned Senior Counsel for the CRP 451/2010 Page 5 of 11 respondents in respect of the statement made in the said suit because this Court finds that the said suit was not a subject matter in use when the alleged compromise was made between the parties. The said suit was instituted after the petition for recording a compromise was filed and therefore, in the opinion of this Court, it constitutes subsequent development, on which this Court could not like to make any comment as it may prejudice either of the parties in the trial of the said suit. The petition for recording the compromise was filed on 07.01.2010 and the said T.S. No. 45/2010 was filed on 09.08.2010. Be that as it may, it is submitted that in the said affidavit-in-opposition, the respondents have specifically denied the execution of the Deed of Settlement. It is further submitted by the learned Senior Counsel for the respondents that they have denied the bonafide of the said settlement and submit that the said power of attorney was ultimately revoked on 28.06.2010 and it is claimed in the said affidavit-in-opposition that the Deed of Settlement of Dispute dated 25.06.2010 is a forged and fabricated document. It is therefore submitted that no ground can be found for interfering with the impugned order. It is also argued that the High Court in exercise of jurisdiction under Article 227 of the Constitution of India should confine only to see whether the learned Trial Court has proceeded within its parameter and it is not open of this Court to either correct an error apparent on the record and much less to correct on error of law. For that purpose, the learned Senior Counsel for the respondent has relied on the case of Sadhna Lodh vs. National Insurance Co. Ltd. and anr., AIR 2003 SC 1561.
11) This Court considering the rival argument advanced by both the learned Senior counsels has perused the case of Shanti Budhiya Vesta Patel & Ors. (supra), which was relied upon by the learned Senior Counsel for the petitioner. As per the facts of the said case, the other respondents in the said case had appointed the respondent No. 9 as their attorney and had further signed affidavits-cum-declarations, which reveals that the properties were transferred to the respondent No. 9 and therefore as per the facts of the said case, the court was on the opinion that it was crystal clear that appellants therein CRP 451/2010 Page 6 of 11 had not only confirmed the deeds and documents entered into between their predecessor-in-interest and the respondent No. 9, but also constituted respondent No. 9 as their lawful attorney, inter-alia, authorizing him to compromise or compound the dispute. Under the said circumstances, the Hon'ble Apex Court had held that the appellants had no ground or right to assail the compromise decree passed by the High Court.
12) However, in the present case in hand it appears that the attorney holder i.e. Abdul Jalil was not a party in the suit. As per the language used in the provisions of Rule 3 of Order XXIII of the Code, it is mandated that a compromise must be signed by the parties. Therefore, the ratio of the aforesaid case is not applicable in the present case in hand under the facts and circumstances unique to the present case in hand.
13) Insofar as, in the case of Nirmala Jayprakash Tiwari and Ors. (supra), this Court has accepted the ratio as laid down in the said case that if a compromise is found to be genuine then the court has no option but to accept the compromise. However, in the present case in hand, it is seen that the defendant no. 1 appeared and denied the compromise, further specifically denying the receipt of Rs.5,00,000/- (Rupees five lakh only). Under the circumstances, this Court is of the view that the learned Trial Court did not commit any infirmity in holding that "In this present case the defendants denies any execution of compromise for which I do not find that compromise as alleged to be affected by power of attorney held to be valid. The defendants did not give the attorney holder to contest the case as the defendants themselves contested their case which fact reveals from written statement, so the prayer for plaintiff is rejected."
14) On perusal of the General Power of Attorney, a statement in clause-5 thereof appears to be relevant:
CRP 451/2010 Page 7 of 11"5. To compromise/settle/withdraw the dispute in respect of the said plot of land & property between Md. Abdullah Khan and Must. Akbari Begam, and the executants of this Power of attorney with reference to T.S. No. 2 of 1995 at the Court of the Munsiff No. 1 at Dibrugarh and R.S.A. No. 41/2001 pending before the Hon'ble Gauhati High Court, for disposal (vide Deed of Settlement dated 08.06.2010) and to sign and execute necessary documents as and when requires in our name and on our behalves."
15) On perusal of the said clause, it is sufficient to show that the reference in the said power of attorney was with regard to Deed of Settlement of Dispute dated 08.06.2010. However, as per the case projected by the learned Senior counsel for the petitioner, the Deed of Settlement of Dispute in the present case was made on 25.06.2010. Moreover, in the application filed under Rule 3 of Order XXIII of the Code, there is no explanation as to how and why the said compromise with the attorney ought to have relied by the learned Trial Court in passing a decree of compromise when there was an apparent mismatch of date of 08.06.2010, as mentioned in the Power of Attorney and the date of actual Deed of Settlement which was on 25.06.2010. Moreover, on perusal of the said application Rule 3 of Order XXIII of the Code, it appears that same was only verified by Md. Abdullah Khan, who was only the plaintiff No. 1 in the suit. As per the copy annexed to this revision as Annexure-E, it appears that the said petition was verified and not supported by any affidavit, nor it was signed or verified or sworn by any of the other plaintiffs or six defendants named therein. There is also no materials on record to show that the said six defendants in the suit were represented by their attorney before the learned Trial court. Therefore, this Court is of the view that the basic requirements of the provisions of Rule 3 of Order XXIII of the Code has not been complied with. It may be pertinent to refer to the case of Som Dev & Ors vs. Rati Ram and anr., reported in (2006) 10 SCC 788. The relevant paragraph 13 is quoted herein below:
CRP 451/2010 Page 8 of 11"13. After the amendment of the Code of Civil Procedure by Act 104 of 1976, a compromise of a suit can be effected and the imprimatur of the Court obtained thereon leading to a decree, only if the agreement or compromise presented in court is in writing and signed by the parties and also by their counsel as per practice. In a case where one party sets up a compromise and the other denies it, the Court can decide the question whether, as a matter of fact, there has been a compromise. But, when a compromise is to be recorded and a decree is to be passed, Rule 3 of Order XXIII of the Code insists that the terms to the compromise should be reduced to writing and signed by the parties. Therefore, after 1.2.1977, a compromise decree can be passed only on compliance with the requirements of Rule 3 of Order XXIII of the Code and unless a decree is passed in terms thereof, it may not be possible to recognise the same as a compromise decree. In the case on hand, a decree was passed on 10.10.1980 after the amendment of the Code and it was not in terms of Order XXIII Rule 3 of the Code. On the other hand, as the decree itself indicates, it was one on admission of a pre-existing arrangement."
16) Therefore, as per the ratio of the aforesaid case, a compromise decree can be passed only on compliance with the requirements of Rule 3 of Order XXIII of the Code and unless a decree is passed in terms thereof, it may not be possible for the court to recognize the same as a compromise decree.
17) As regards the submissions made by the learned Senior Counsel for the petitioner that the Trial Court did not give any opportunity to the petitioners to adduce evidence, this Court is of the unhesitant opinion that unless any party specifically makes a prayer before the Trial Court to lead evidence in a Misc.
CRP 451/2010 Page 9 of 11proceeding, a Civil Court is not always obliged to direct the parties to give evidence on its on. As per the documents annexed in this Revision, the written objection was filed by the defendants in the matter of petition under Order XXIII Rule 3 of the Code on 06.09.2010 and the matter was heard on 28.09.2010. Therefore, it cannot be said that the petitioners herein had no notice of hearing. Therefore, having not prayed for any opportunity to give evidence before the learned Trial Court, it is not open for the petitioners to find fault with the Trial Court that they were not given any opportunity to lead evidence in the case.
18) It may be pertinent to state here that there is no material on record to show that the attorney purportedly appointed by virtue of the power of attorney dated 08.06.2010 had appeared for the original respondents (defendants in the suit) in course of trial. Therefore, there was no material on record before the learned Trial Court to take a view contrary to what was held by the impugned order. In the absence of the signature of all the parties with the said petition filed under Order XXIII Rule 3 of the Code, there was no material before the learned Trial Court to accept that the said compromise was to be acted upon either by the learned Trial Court or by the defendants in the suit.
19) Accordingly, this Court does not find any infirmity with the impugned order passed by the learned Trial Court. There appears to be no jurisdictional error which requires interference of this Court in exercise of jurisdiction under Article 227 of the Constitution of India. This is not a fit case where the opinion of this Court is required to be substituted by the discretion which is found to be judicially exercised by the learned Trial Court.
20) Accordingly, this revision is dismissed.
21) The parties are left to bear their own cost.
CRP 451/2010 Page 10 of 11
22) The parties are directed to appear before the learned Trial Court i.e.
Court of Munsiff No. 1, Dibrugarh, in connection with T.S. No. 110/2006 on 30.05.2017 without any further notice in this regard for appearance and to seek further instructions from the said learned Court.
JUDGE Mkumar.
CRP 451/2010 Page 11 of 11