Madras High Court
Chinnapaiyan @ Chinnathambi vs A.Mohamed Yusuf on 29 July, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29 .07.2013 Coram The Hon'ble Mr. Justice K.RAVICHANDRABAABU C.R.P.(NPD) No. 2553 of 2009 and M.P.No. 1 of 2009 1. Chinnapaiyan @ Chinnathambi 2. Mrs.Sathya .. Petitioners Vs 1. A.Mohamed Yusuf rep. By his Power Agent C.Jalaludin 2. Mrs.Pachaiammal 3. Subramanian .. Respondents (Cause title accepted as per Order of the Court dated 23.7.2009 made in M.P.No. 1 of 2009 in C.R.P(NPD) No. 2553 of 2009) Civil Revision Petition filed against the judgment and decree dated 16.11.2006 made in I.A.No. 161 of 2005 in O.S.No. 58 of 1998 on the file the District Munsif Court at Ranipet, Vellore District. For Petitioners : Mr.V.Rajednran For Respondents : Mr.V.Bharathidasan (R1) No appearance for R2 and R3 ORDER
This Civil Revision Petition is filed challenging the order of the Court below in dismissing the application filed by the petitioners to recall the decree passed in O.S.No. 58 of 1998 dated 9.2.2004 by setting aside the compromise recorded on the same day therein.
2. The defendants 4 and 7 in the said suit are the petitioners herein. The plaintiff, who is the first respondent herein filed the said suit for declaration and for permanent injunction on the file of the District Munsif Court, Ranipet. The trial Court decreed the suit based on a compromise memo filed on behalf of the plaintiff and the defendants. The defendants 4 and 7 filed the above said application seeking to set aside the compromise recorded on 9.2.2004 and consequently, to recall the decree passed in the said suit.
3. It is their contention that they had never intended to enter any compromise nor they really entered into the same. The compromise memo is a fabricated/manipulated one and the same could not be a basis for the decree . They came to know about the said compromise only when an attempt was made by the plaintiff to evict them from the suit property. The signature and thumb impression found in the memo of compromise are the forged signature and thumb impression of the defendants 4 and 7 respectively. They did not consent for any compromise nor signed the same. The 4th defendant was already set exparte in the suit. While so, recording a compromise including the 4th defendant is invalid. Their erstwhile counsel filed the memo of compromise without verifying the truth of the execution of the same. He had colluded with the plaintiff and filed the memo before the Court. The plaintiff's vendor viz., the 5th and 6th defendants had no title to the suit property and therefore they could not convey the same to the plaintiff. The suit is barred by res judicata in view of the judmgent and decree passed in O.S.No. 130 of 1983.
4. The plaintiff resisted the said application by filing a counter. It is stated therein that the compromise decree had been recorded after the respective parties and their counsels affixed their signature and thumb impression therein and they were also heard in the court and only thereafter the compromise decree was passed. The defendants 4 and 7 are trying to extract money from the plaintiff by way of filing this application after having entered into a compromise.
5. The Court below after considering various aspects of the matter elaborately, rejected the application by order dated 16.11.2006 . Aggrieved against the same, the present Civil Revision Petition is filed before this Court.
6. Heard the learned counsel appearing for the petitioners and the respondents.
7. The contentions of the learned counsel for the petitioners are as follows:-
The defendants 4 and 7 have not signed the compromise memo. The fourth defendant remained exparte all along and he did not engage any counsel. The 7th defendant was also represented by one Advocate by name Mr.Aravumudan. While recording the compromise, the Court below has set the fourth defendant as exparte. The finding of the Court below with regard to the execution of the compromise memo are factually incorrect. Since fraud has been committed by the plaintiff, the compromise memo became void and therefore based on that no decree can be passed. Order 23 Rule 3 CPC requires that compromise memo should be signed by the parties . The application filed by the petitioners is maintainable under Order 23 Rule 3 . When a separate suit is barred under Rule 3A and no appeal would also lie in view of the bar under Section 96(3) CPC, only remedy left open to the petitioners is to file the application to recall the decree. The petitioners cannot file any appeal under Order 43 Rule 1A of CPC also. The court below has not considered the legality of the compromise especially when the suit itself is not maintainable. In support of his submissions he relied on the decision reported in 1993 (1) SCC 581 ( Banwari Lal Vs.Chando Devi and Another).
8. The learned counsel for the petitioners further argued that an Advocate cannot enter into a compromise on behalf of his client and in support of his submission relied on the decisions of the Apex Court reported in 1988 SC 400 ( Gurpreet Singh Vs. Chatur Bhuj Goel) and 1992 (1) SCC 31 (Breyam Pestonji Gariwala Vs. Union Bank of India and Others).
9. Per contra, the learned counsel Mr.Bharathidasan, appearing for the first respondent /plaintiff submitted that the very Civil Revision Petition itself is not maintainable before this Court and only an appeal would lie as against the order made by the Court below. As per the compromise, some properties were given to the petitioners as well. Therefore, it is not as if they are left without any property. The defendants appeared through counsel and both of them have signed the compromise memo. Their counsel have also signed the compromise memo. The petitioners did not deny the fact that they engaged a counsel. On the other hand, the 7th defendant appeared before the Court at the time of recording the compromise. Having filed a compromise memo before the Court and having allowed the Court to pass a decree based on the compromise memo, the petitioners cannot turn around and say that the said compromise was a fraudulent one. In support of his submissions, the learned counsel relied on the following decisions:-
1. 2010 (5) SCC 104 (Shanti Budhiya Vesta Patel and Others Vs. Nirmala Jayprakash Tiwari and Others)
2. 2011 (8) SCC 679 ( Bakshi Dev Raj and Another Vs. Sudheer Kumar)
3. 2002 (5) CTC 646 ( Gemini Pictures Circuit P.Ltd., Vs. M.Ramaswamy and Another)
10. The defendants 4 and 7 have filed the application under Section 151 read with Order 23 Rule 3 of CPC to set aside the compromise recorded and also to recall the decree passed in the said suit. Order 23 Rule 3 CPC reads as follows:-
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 denied by the other that 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 voidable under the Indian Contract Act, 182 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.
11. A perusal of the above said provision shows that the Court shall record the compromise, if 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 and thereupon shall pass a decree in accordance with such compromise. However, proviso to Rule 3 shows that if an adjustment or satisfaction arrived at between the parties is denied by any of the parties , then the Court shall decide the question immediately without adjourning the matter unless, for reasons to be recorded, the Court feels that such adjournment is necessary. Thus, it is manifestly clear that any denial of adjustment or satisfaction has to be made on the date of presentation of compromise memo or recording the same by the Court so as to enable the Court to decide such questions without adjourning the matter for the purpose of deciding the question.
12. In this case, it is seen that the compromise memo was filed before the Court and recorded by it on 9.2.2004. It is also found by the Court below at para 9 of its order that the 4th and 7th defendants were present in the Court with their counsel at the time of filing the memo and stated before the Court that they are agreeing to the terms of compromise. Consequently on the same day, a decree, based on such compromise memo came to be passed. After a lapse of one year i.e. O n 28.3.2005, the defendants 4 and 7 filed the present application seeking to set aside the compromise memo and to recall the decree. Therefore, in my considered view, the petitioners are not justified in maintaining a petition after the period of one year under Order 23 Rule 3 CPC . If at all any grievance is there, they should have raised it immediately as contemplated under proviso to Order 23 Rule 3 CPC. Further, a perusal of Order 43 Rule 1A(2) of CPC would show that an appeal is maintainable against such decree passed by the Court below in pursuant to the compromise by recording the compromise memo. Order 43 Rule 1A reads as follows:-
1-A(1) .... .... ....
2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should or should not, have been recorded .
13. At this juncture let me straightaway refer to the decision of the Hon'ble Supreme Court reported in 1993 (1) SCC 581 ( Banwari Lal Vs.Chando Devi and Another) wherein at paragraph 9 it is held thus :-
" var _gaq = _gaq || [];
_gaq.push(['_setAccount', 'UA-87326-4']);
_gaq.push(['_trackPageview']);
(function() {
var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true;
ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js';
var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s);
})();
9. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while prefering an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute." (emphasis supplied)
14. Thus, I am of the view that the petitioners have to only file an appeal under Order 43 Rule 1-A (2) of CPC and not by filing an application under Order 23 Rule 3 CPC. As I have already pointed out that such exercise is contemplated under the proviso to Order 23 Rule 3 only on the day when the compromise was recorded by the Court without any adjournment or on the adjourned day, if the Court is satisfied that such adjournment is necessary.
15. No doubt the learned counsel appearing for the petitioners also relied on the decision of the Supreme Court reported in 1993 (1) SCC 581 ( Banwari Lal Vs.Chando Devi and Another) to contend that the Court below ought not to have accepted the compromise memo and passed the decree thereon, even if it had no knowledge of the fraud alleged to have been practised since the petition for compromise has not been signed by the petitioners. In this case as pointed out by me earlier that the compromise memo was filed on 9.2.2004 and on the same day, the Court has passed the decree based on such compromise memo. However, the petitioners have filed the present application only on 28.3.2005 i.e. nearly after one year. Therefore, as on the date of recording compromise memo and passing the decree thereon, the Court below was not placed with any facts or materials that the compromise memo was obtained by fraud or collusion as alleged by the petitioners. Therefore, the petitioners cannot contend that the Court below ought not to have passed the decree based on such compromise memo, especially under the circumstances, that the Court below has found that the compromise memo contained the signature and thumb impression of the parties as well as their counsels. Hence the reliance placed by the petitioners counsel in the above said decision of the Apex Court on this context is not correct.
16. No doubt the learned counsel appearing for the respondents relied on the decisions reported in 2010 (5) SCC 104 (Shanti Budhiya Vesta Patel and Others Vs. Nirmala Jayprakash Tiwari and Others) and 2011 (8) SCC 679( Bakshi Dev Raj and Another Vs. Sudheer Kumar) to contend that the burden to prove that a compromise arrived under Order 23 Rule 3 of CPC was tainted by coercion or fraud lies upon the party who alleges the same and that the counsel has power to make a statement on instructions from the party and thus he is well within his competence. As I find that the remedy for the petitioners lies elsewhere and not by way of filing an application under Order 23 Rule 3 CPC, I am not expressing any view on the merits of the contention of the rival parties.
17. Equally the other decision relied on by the learned counsel for the respondent reported in 2002 (5) CTC 646 ( Gemini Pictures Circuit P.Ltd., Vs. M.Ramaswamy and Another) is in respect of the merits of the matter to establish that the petitioners did not engage the counsel who singed the compromise. Therefore, I am not expressing any view on this aspect as well. No doubt, the finding rendered by the Court below as if the petitioners have not disputed their signatures in the compromise memo is factually incorrect. On the other hand a perusal of the pleadings as well as the evidence would show that they have very much disputed their signature. Thus such finding of the Court below is not factually correct. However, as I am convinced that the application filed by the petitioners under Order 23 Rule 3 CPC is not maintainable and when such application was rejected by the Court below, I am confirming the said order of rejection only on the ground of maintainability as stated supra. Accordingly it is open to the petitioners to file an appeal under Order 43 Rule 1A(2) of CPC and contest the matter by raising all the grounds available to them. By giving such liberty, the Civil Revision Petition is dismissed. Consequently the connected M.P. is closed. No costs.
krr To The District Munsif Court at Ranipet Vellore District