Delhi High Court
Bhai Swinder Singh vs Ram Kishore on 7 February, 1997
Equivalent citations: 1997IIIAD(DELHI)230, 66(1997)DLT575, 1997(41)DRJ366, (1997)116PLR55
Author: S.N. Kapoor
Bench: S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
(1) This Revision Petition is directed against an order dated 8th December, 1993 whereby the plaintiff No. 2 was allowed to withdraw his application for recording compromise under Order 23 Rule 1.
(2) From the perusal of copy of the application filed by the petitioner, it is apparent that the application was signed by plaintiff No. 2 Srigopal S/o Ram Chand alone and none of the other parties. Order 23 Rule 1(3) reads as under:- Order XXIII.Rule 1 Withdrawal of suit or abandonment of part of claim (1)xxx (2)xxx (3)Where the Court is satisfied,-
(A)that a suit must fail by reason of some formal defect, or (B)that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim;
(3) It is evident from the application moved by plaintiff No. 2 that it is signed by only one of the parties and not by all the parties. It would be relevant to reproduce here Order 23 Rule 3 CPC. It reads as under: "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 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."
(4) Since the application in question is undisputedly not signed by all the parties, the applications suffer from this discrepancy and compromise could not have been recorded on the basis of the said application. In Gurpreet Singh Vs. Chatur Bhuj Goel. , the Apex Court observed that strict compliance of Order 23 Rule 3 was necessary. In that case, the compromise was virtually arrived at before the court but later on, the respondent went back taking advantage of Order 23 Rule 3. Admittedly, the compromise was not reduced to writing and signed by the parties. A Division Bench of our own High Court in Kamla Devi & Ors. Vs. Prabhat Chand & Am. , the same principle was followed. It may be mentioned that the proviso to Rule 3 would apply only when the compromise or agreement has been reduced in writing and signed by the parties - meaning thereby all the parties - and then and then alone the proviso would apply. Consequently, the court could not have acted upon the said application moved for recording compromise and the natural consequence was either rejection or withdrawal.
(5) If the respondent apprehends that the admissions made in the application by plaintiff No. 2 would also be withdrawn, it is clarified that so long as the application remains on the record, plaintiff No. 2 could be confronted with those admissions which' have been made in the application. But in that case, plaintiff No. 2 would certainly be entitled to explain the circumstances in which the alleged compromise was arrived at. Therefore, it would not be justified to say that respondents are likely to be prejudiced in any manner by withdrawal of the application.
(6) For the foregoing reasons, there is no force and merit in this petition and it is dismissed accordingly.
(7) A copy of this order be sent to the learned Trial Court for information.