Madras High Court
P.Ganapathi vs S.Balasaraswathi on 8 April, 2015
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.04.2015 CORAM THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN C.R.P.(PD) (MD) No.525 of 2012 and M.P.(MD) No.1 of 2012 and C.R.P.(PD) (MD) No.774 of 2011 and M.P.(MD) No.1 of 2011 P.Ganapathi ... Petitioner/Respondent/Respondent/Plaintiff in C.R.P.(PD) (MD) No.525 of 2012 Balasaraswathi ... Petitioner/Petitioner/7th Respondent/ 7th Defendant in C.R.P.(PD) (MD) No.774 of 2011 -vs- S.Balasaraswathi ... Respondent/Appellant/Petitioner/7th Defendant in C.R.P.(PD) (MD) No.525 of 2012 Ganapathi ... Respondent/Respondent/Petitioner/Plaintiff in C.R.P.(PD) (MD) No.774 of 2011 PRAYER (C.R.P.(PD) (MD) No.525 of 2012): Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order, dated 15.09.2011, in C.M.A.No.1 of 2011, on the file of the Subordinate Court, Kovilpatti, against I.A.No.277 of 2010 in O.S.No.98 of 1996, on the file of the District Munsif Court, Kovilpatti. PRAYER (C.R.P.(PD) (MD) No.774 of 2011): Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and final order, dated 28.07.2010, made in I.A.No.278 of 2010 in I.A.No.917 of 2007 in O.S.No.98 of 1996, on the file of the District Munsif, Kovilpatti. C.R.P.(PD) (MD) No.525 of 2012: !For Petitioner : Mrs.S.Srimathi for Mr.K.M.Venugopal ^For Respondent : Mr.S.Kadarkarai C.R.P.(PD) (MD) No.774 of 2011: For Petitioner : Mr.S.Kadarkarai For Respondent : Mrs.S.Srimathi for Mr.K.M.Venugopal :COMMON ORDER
The plaintiff in O.S.No.98 of 1996, on the file of the learned District Munsif, Kovilpatti, is the revision petitioner in C.R.P.(PD) (MD) No.525 of 2012, whereas, the 7th defendant in O.S.No.98 of 1996 is the revision petitioner in C.R.P.(PD) (MD) No.774 of 2011.
BRIEF FACTS:
2. The petitioner in C.R.P.(PD) (MD) No.525 of 2012 filed a suit in O.S.No.98 of 1996, before the Trial Court, praying for decree of partition and separate allotment of his share. In the said suit, a preliminary compromise decree was passed by the Trial Court on 19.11.2001. The petitioner in C.R.P.(PD) (MD) No.525 of 2012 was a signatory to the said compromise memo. Thereafter, the Trial Court passed a final decree in I.A.No.917 of 2007. The petitioner in C.R.P.(PD) (MD) No.525 of 2012, on the strength of the preliminary decree, dated 19.11.2001, in O.S.No.98 of 1996, filed an interlocutory application in I.A.No.278 of 2010. The Trial Court passed an ex parte order appointing an Advocate Commissioner on 16.09.2008. In the meantime, the petitioner in C.R.P.(PD)(MD) No.774 of 2011 filed an interlocutory application in I.A.No.277 of 2010 to set aside the preliminary decree, dated 19.11.2001.
The said interlocutory application was dismissed by the Trial Court, by order dated 28.07.2010. The order, dated 28.07.2010, dismissing the interlocutory application in I.A.No.277 of 2010 was challenged by the petitioner in C.R.P.(PD)(MD) No.774 of 2011 in C.M.A.No.1 of 2011, before the learned Subordinate Judge, Kovilpatti. The learned First Appellate Judge was pleased to allow the civil miscellaneous appeal, by Judgment and Decree, dated 15.09.2011. The Decree, dated 15.09.2011, is under challenge in C.R.P.(PD) (MD) No.525 of 2012. The order, dated 28.07.2010, in I.A.No.278 of 2010, challenging the ex parte order, dated 16.09.2008, appointing Advocate Commissioner to divide the suit property by metes and bounds is under challenge in C.R.P.(PD) (MD) No.774 of 2011.
3. Heard the learned counsel for the respective parties.
DISCUSSION:
4. The controversy arose in this case on account of the compromise decree passed by the Trial Court without the association of the petitioner in C.R.P.(PD)(MD) No.774 of 2011.
5. The petitioner in C.R.P.(PD)(MD) No.774 of 2011 was the 7th defendant in the suit in O.S.No.98 of 1996. The learned Trial Judge, without the association of the said defendant, passed a preliminary compromise decree to make it appear as if the decree would bind all the parties. The petitioner in C.R.P.(PD)(MD) No.774 of 2011 is, therefore, perfectly correct in contending that the compromise decree was not in terms of Order XXIII Rule 3 of the Code of Civil Procedure. The preliminary decree was, therefore, rightly set aside by the learned First Appellate Judge in C.M.A.No.1 of 2011. I, therefore, do not find any merit in the contention taken by the petitioner in C.R.P.(PD)(MD) No.525 of 2012.
6. It was only during the currency of the interlocutory application to set aside the ex parte preliminary decree, the order dated 16.09.2008, was passed by the learned Trial Judge. It is also a matter of record that the very compromise decree was subsequently set aside by the learned First Appellate Judge in C.M.A.No.1 of 2011. In view of the same, necessarily the order, dated 16.09.2008, requires to be set aside. In the result, the order, dated 16.09.2008, is set aside.
COMPROMISE DECREE ? NATURE AND SCOPE:
7. The scope and ambit of compromise decree, under Order XXIII Rule 3 of the Code of Civil Procedure, was considered by a Division Bench of this Court in K.M.Ramanathan v. Rengasamy, reported in 2013 (2) CTC 13. The Division Bench made it clear that compromise should be reduced into writing and signed by all the parties. The relevant portion reads as follows:
?Factors to be considered before passing a compromise decree:
18. Order 23, Rule 3 of C.P.C. permits the parties to the lis to compromise the Suit. The provision regarding compromise of the Suit has undergone a sea change on account of the amendment made to the Code of Civil Procedure by Act 104/1976. Order 23, Rule 3 of CPC, after the amendment, provides that compromise can be recognized by the Court only in case it was made out in writing and signed by all the parties to the Suit. The amendment was made with a laudable object. The provision after the Suit must contain the signature of all such parties. The association of all the parties to the Suit, therefore, is a mandatory requirement, for passing a decree of compromise under Order 23, Rule 3 of C.P.C.
8. The Supreme Court in Gurpreet Singh v. Chatur Bhuj Goel, 1988 (1) SCC 270, held that compromise should be reduced in writing and signed by all the parties. The Supreme Court said:
?10. Under Rule 3, as it now stands, when a claim in Suit has been adjusted wholly or in part by any lawful agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed agreement between them. To constitute an adjustment, the agreement or compromise must itself be capable of being embodied in a 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. The Court must therefore insist upon the parties to reduce the terms into writing.?
9. The Supreme Court in Som Dev v. Rati Ram, 2006 (5) CTC 79 (SC):2006 (10) SCC 788, observed that a compromise decree can be passed only in case the compromise is reduced to writing and signed by all the parties.
?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 the 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 23 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 23 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 23 Rule 3 of the Code. On the other hand, as the decree itself indicates, it was one on admission of a pre-existing arrangement.?
10. In Bimal Kumar v. Shakuntala Debi, 2012 (2) CTC 881 (SC) : 2012 (3) SCC 548, the Supreme Court indicated that compromise is nothing but settlement of differences by mutual consent, by giving a decent burial to the dispute between the parties. The Supreme Court said:
?27. It is to be borne in mind that the term ?compromise? essentially means settlement of differences by mutual consent. In such process, the adversarial claims comes to rest. The cavil between the parties is given a decent burial. A compromise which is arrived at by the parties puts an end to the litigative battle. Sometimes the parties feel that it is an unfortunate bitter struggle and allow good sense to prevail to resolve the dispute. In certain cases, by intervention of well-wishers, the conciliatory process commences and eventually, by consensus and concurrence, rights get concretised. A reciprocal settlement with a clear mind is regarded as noble. It signifies magnificent and majestic facets of the human mind. The exalted state of affairs brings in quintessence of sublime solemnity and social stability.?
11. The Supreme Court in Sneh Gupta v. Devi Sarup, 2009 (6) SCC 194, observed that a compromise decree is not binding on such Defendants who were not parties to the memo of compromise. The Supreme Court said:
?24.Order 23, Rule 3 of the Code of Civil Procedure provides that a compromise decree is not binding on such defendants, who are not parties thereto. As the Appeal has been allowed by the High Court, the same would not be binding upon the Appellant and thus, by reason thereof, the Suit in its entirety could not have been disposed of.?
12. Since all the parties to the suit were not parties to the compromise memo, necessarily the matter requires fresh consideration by the Trial Court.
DISPOSITION:
13. The suit in O.S.No.98 of 1996 is restored to file. The defendants are given time till 20.04.2015 to file written statement. The learned Trial Judge is directed to dispose of the suit in O.S.No.98 of 1996 as expeditiously as possible and in any case on or before 31.07.2015. It is made clear that in case any of the defendants failed to file written statement within the time permitted by this Court, it is open to the learned Trial Judge to proceed with the matter and decide the suit on the basis of available materials.
14. The civil revision petitions are disposed of as indicated above. No costs. Consequently, connected miscellaneous petitions are closed. Note to Office:
Issue order copy on 13.04.2015 08.04.2015 Internet : Yes/No Index : Yes/No krk To:
1.The Subordinate Judge, Subordinate Court, Kovilpatti.
2.The District Munsif, District Munsif Court, Kovilpatti.
K.K.SASIDHARAN, J.
krk C.R.P.(PD) (MD) No.525 of 2012 and M.P.(MD) No.1 of 2012 and C.R.P.(PD) (MD) No.774 of 2011 and M.P.(MD) No.1 of 2011 08.04.2015 Note to Office:
Issue order copy on 13.04.2015