Bombay High Court
Dr. Fondo Shivram Dessai And Ors. vs Shri Mahendra Shivram N. Dessa And Ors. on 24 June, 1996
Equivalent citations: 1997(1)BOMCR281
Author: R.K. Batta
Bench: R.K. Batta
JUDGMENT R.K. Batta, J.
1. The petitioners (defendants Nos. 1 and 2 and defendants Nos. 5 and 6 in the suit) had filed an application on 5-11-1992 under Order 23, Rule 3, C.P.C. in which it was prayed that this suit may be decreed in terms of compromise/agreement dated 23-4-1988. This application was dismissed by impugned order dated 16th September, 1993 by Civil Judge, Senior Division, Margao and it is this order which is challenged in revision.
2. Learned Advocate Shri M.P. Almeida took me through the contents of the said compromise/agreement and submitted that the same is a concluded agreement and nothing more remained to be done by the parties; that whatever was left to be done under the said compromise/agreement could be subject-matter of execution; that the said compromise/agreement is not opposed by the opposite party on grounds of undue influence, fraud or plea of like nature; that the execution of the said compromise/agreement has not been denied by the parties and that in a suit for partition whatever was required to be done was done under the said compromise/agreement and nothing remained to be done any further. Relying upon a number of judgments of the Bombay High Court in Keshav s/o Dattram v. Yamunabai w/o Nagoba, 1986(1) Bom.C.R. 81, Union Bank of India v. Shri Byram Pestonji Gariwala and others, , R.V. Kulkarni v. Messrs. La Builde Corporation and others, 1994(4) Bom.C.R. 46 and Ratanchandra and another v. Mrs. Suruchi Chand and others, 1995 A.I.H.C. 191, it was contended by learned Advocate Mario Almeida that the trial Judge had erred in not allowing the application in question and that the impugned order be set aside and necessary orders be passed under Order 23, Rule 3, C.P.C.
3. On the other hand, Advocate Shri Nitin Sardessai has objected to the grant of relief sought by the petitioners on the ground that it is apparent from the terms of the said compromise/agreement that it was not a concluded agreement and that many things had remained to be done including draft consent terms. According to Shri Sardessai, the said compromise/agreement was merely a guideline which the parties had agreed for the settlement of the matter in pursuance of which the final terms were still to be agreed. He took me through letter dated 18-10-1988 which further gives an indication that the said compromise/agreement was not a final document, but that certain things had to be done and since the same were not done, the respondents had repudiated the said agreement. He also dwelt on the question of conduct of parties and submitted that the conduct of parties gives a clear indication that the said compromise/agreement was not intended to be acted upon by the parties. He, therefore, submits that the revision is liable to be dismissed.
4. In a suit for partition between the brothers which was filed in the year 1985, a document called "terms of compromise" was executed on 23rd April, 1988. The said agreement provided for arrangements for distribution of houses and paddy field. The terms of the said compromise - some of which will be referred hereinafter - give a clear indication that the said document cannot be treated as a concluded compromise/agreement since many things are required to be done under the said compromise/agreement so as to attain finality. The agreement provided that the paddy fields shall be divided into 4 equal parts maintaining as far as possible the continuity making necessary adjustments. Therefore, maintenance of continuity by making necessary adjustments was still required to be done under the said document. The agreement further provided that the division of paddy fields shall be done in consultation with Pratap and Arvind which was again required to be done under the said document. Another term therein was that it was further agreed that consent terms shall be drafted and shall be filed in the Civil Suit No. 174 of 1985. It further provided that a consent decree with actual plans showing the partition by metes and bounds and showing the boundaries shall be obtained and duly registered. Therefore, final consent terms were yet to be drafted and the actual plans showing partition by metes and bounds had also to be annexed to the said document.
5. After the said document was executed on 23rd April, 1988, it appears that final consent terms were neither drafted nor filed in the Civil Suit and the plaintiffs had on 18-10-1988 sent a notice to the defendants Nos. 1, 3 and 5 pointing out that the agreement was required to be endorsed on stamped paper and was required to be executed before Sub-Registrar; that advocate Shri Mario Almeida had expressed that he could not finalise the drafting on account of the non-partitioning of the paddy field and house; that it was agreed that the partition of the paddy field shall be finalised during Ganesh Festival; that it appeared that nothing had been done in that connection as a result of which it would not be possible to file compromise terms on 28-11-1988 and in case the same is not finalised on or before 15-11-1988, agreement dated 23-4-1988 shall not be binding on the plaintiffs; admittedly, no reply was sent by defendants Nos. 1, 3 and 5 to this notice.
6. Subsequently during the course of cross-examination of the plaintiff on 3-7-1990, Advocate for defendants Nos. 1 and 2 insisted on production of the said agreement dated 23rd April, 1988 which was produced in the Court on the next hearing. It was only on 5-11-1992 that defendants Nos. 1 and 2 filed an application under Order 23, Rule 3 C.P.C. which was disposed of by the impugned order.
7. Taking into consideration the above mentioned circumstances and the conduct of the parties in not filing the said agreement for a period of over two years in the Court and none of the parties applying for an order under Order 23, Rule 3 C.P.C. except on 5-11-1992, it is crystal clear that the parties did not intend to act upon the said compromise/agreement. In fact, it has been pointed out by Single Judge of this Court in Vishwanath Hari Vaidya, since dead, through his heirs v. Bhagabai Shankar Wayale and another, , that conduct of parties revealing that the compromise was not to be acted upon is a valid consideration for rejecting an application under Order 23, Rule 3 C.P.C. In another ruling of Single Judge of this Court in R.V. Kulkarni v. Messrs. La Builde Corporation and others, 1994(4) Bom.C.R. 46, the Court refused to pass decree under Order 23, Rule 3 on the ground that the compromise in question was not a concluded compromise.
8. In the case under consideration, not only none of the parties filed any application under Order 23, Rule 3 C.P.C. for a period of more than 4 and half years from the date of the said compromise/agreement, but the parties continued to proceed with the suit and, in that process, even the evidence of the plaintiff was also started. Letter dated 18-10-1988 which was not replied by defendants Nos. 1 and 2 also gives a clear indication that the said agreement did not bind the parties and the parties never intended to act upon the said compromise/agreement. In this connection, it is necessary to note down the observations of Single Judge in Ramchandra Vishnu v. State of Madhya Pradesh and others, , which are as under :----
"... Once a compromise is arrived at, he should not proceed with the suit. He should ask the Court to record the compromise and satisfy it that the agreement is genuine. If he, however, changes his mind and the other party also acquiesces, the compromise is washed out, and the suit should proceed on merits. But he cannot later on, when his hopes do not materialise, come back to the compromise. His conduct amounts to a repudiation of the compromise; and it is no less a repudiation because it is tacit."
This is what has exactly happened in the case under consideration. The said compromise/agreement was never pursued by any of the parties to the suit and, on the contrary, the parties proceeded with the suit and it was only at a much later date that defendants Nos. 1 and 2 sought to file application on 5-11-1992 for a decree under Order 23, Rule 3 C.P.C. which was rightly dismissed by the trial Court by a reasoned order.
9. For the reasons mentioned above, I do not find any merit in the revision and the revision hereby dismissed. Rule discharged accordingly. In the facts and circumstances, parties are left to bear their costs.