2005 JTR(SC) 253
2005 AIR(SCW) 1296 ; 2005 2 BBCJ(SC) 180 ; 2005 1 CivCC 577 ; 2005 2 JT 417 ; 2005 2 PLR(SC) 539 ; 2005 2 Scale 148 ; 2005 2 SCC 567 ; 2005 2 Supreme 53
2005(2) Supreme 53
Supreme Court of India
(From Punjab and Haryana High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.P. Naolekar, JJ.
Ajad Singh @ Ajad —Appellant
versus
Chatra & Ors. —Respondents
Civil Appeal No. 1211 of 2005
(Arising out of SLP (C) No. 3884 of 2002)
Decided on 14-2-2005
Counsel for the Parties :
For the Appellant : B.S. Mor, S.R. Kalkal and Mahinder Singh Dahiya, Advocates.
For the Respondents : Balbir Singh Gupta, Advocate.
Important point
Where during pendency of suit if a compromise is recorded between the parties at police station, relating to property, subject matter of suit, suit could not have been disposed of except recording compromise by following a procedure provided under Order 23 Rule 3 CPC, if required to be disposed of in term of that compromise.
Act Referred :CIVIL PROCEDURE CODE : O.23 R.3
(A) The provisions of Order 23 Rule 3 of the Civil Procedure Code are central to the resolution of this appeal, as the court found that the trial and first appellate proceedings proceeded without adhering to the mandatory requirement of recording the compromise and its satisfaction in the manner contemplated by the statute. The suit property was the subject of a pending suit when a compromise was allegedly entered into in the police station, and the Code dictates that such compromises must be properly recorded and their satisfaction documented to effect a valid disposition of the suit. The failure of the lower courts to consider this procedural mandate vitiated the proceedings and necessitated a fresh adjudication.
(B) Key legal principles include that a compromise alleged to have been recorded in a police station during the pendency of a suit must comply with Order 23 Rule 3 of the CPC; appellate courts must consider relevant and important aspects of the case, including statutory procedure, while deciding on decrees or orders; and the court must ensure that no party is precluded from raising valid pleas, and that the satisfaction regarding the compromise is properly recorded as required by law.
Facts of the case:
The appellant filed a suit for declaration and possession over suit property, asserting title as a brother alongside respondents 4 and 5, and sought mandatory injunction against respondents 1, 2 and 3. The respondents denied the appellants title and claimed title by adverse possession, further alleging that a compromise dated 14.10.1985, allegedly recorded in a police station, settled the dispute with the appellant relinquishing title. The trial court decreed in favor of the appellant, which was reversed by the first appellate court relying on the compromise. The High Court dismissed the second appeal in limine, upholding the first appellate court.
Findings of Court:
The Supreme Court held that the first appellate court erred in not considering the applicability of Order 23 Rule 3 of the CPC, and in not ensuring that necessary pleadings satisfying the statute were raised in the written statement. The court also noted that the compromise was on a plain piece of paper, and it was for the lower courts to examine whether stamp or registration was required, but the core issue was the failure to follow the mandatory procedure. This procedural oversight was sufficient to vitiate the judgment.
Issues:
Whether the first appellate court was justified in dismissing the suit on the basis of a compromise allegedly entered into during the pendency of the suit without ensuring compliance with Order 23 Rule 3 of the CPC, including recording the compromise and its satisfaction as required by law.
Ratio Decidendi:
The court ruled that the procedural mandate under Order 23 Rule 3 of the CPC cannot be overlooked, as it is essential for the proper adjudication of a suit involving a compromise during pendency. The lower courts failure to adhere to this procedure warranted setting aside the decrees and remanding the matter for fresh consideration.
Result:
The appeal is allowed, the orders of the High Court and the first appellate court are set aside, and the first appeal is remitted to the District Judge, Panipat for re-hearing and fresh disposal.
(A) The provisions of Order 23 Rule 3 of the Civil Procedure Code are central to the resolution of this appeal, as the court found that the trial and first appellate proceedings proceeded without adhering to the mandatory requirement of recording the compromise and its satisfaction in the manner contemplated by the statute. The suit property was the subject of a pending suit when a compromise was allegedly entered into in the police station, and the Code dictates that such compromises must be properly recorded and their satisfaction documented to effect a valid disposition of the suit. The failure of the lower courts to consider this procedural mandate vitiated the proceedings and necessitated a fresh adjudication.
(B) Key legal principles include that a compromise alleged to have been recorded in a police station during the pendency of a suit must comply with Order 23 Rule 3 of the CPC; appellate courts must consider relevant and important aspects of the case, including statutory procedure, while deciding on decrees or orders; and the court must ensure that no party is precluded from raising valid pleas, and that the satisfaction regarding the compromise is properly recorded as required by law.
Facts of the case:
The appellant filed a suit for declaration and possession over suit property, asserting title as a brother alongside respondents 4 and 5, and sought mandatory injunction against respondents 1, 2 and 3. The respondents denied the appellants title and claimed title by adverse possession, further alleging that a compromise dated 14.10.1985, allegedly recorded in a police station, settled the dispute with the appellant relinquishing title. The trial court decreed in favor of the appellant, which was reversed by the first appellate court relying on the compromise. The High Court dismissed the second appeal in limine, upholding the first appellate court.
Findings of Court:
The Supreme Court held that the first appellate court erred in not considering the applicability of Order 23 Rule 3 of the CPC, and in not ensuring that necessary pleadings satisfying the statute were raised in the written statement. The court also noted that the compromise was on a plain piece of paper, and it was for the lower courts to examine whether stamp or registration was required, but the core issue was the failure to follow the mandatory procedure. This procedural oversight was sufficient to vitiate the judgment.
Issues:
Whether the first appellate court was justified in dismissing the suit on the basis of a compromise allegedly entered into during the pendency of the suit without ensuring compliance with Order 23 Rule 3 of the CPC, including recording the compromise and its satisfaction as required by law.
Ratio Decidendi:
The court ruled that the procedural mandate under Order 23 Rule 3 of the CPC cannot be overlooked, as it is essential for the proper adjudication of a suit involving a compromise during pendency. The lower courts failure to adhere to this procedure warranted setting aside the decrees and remanding the matter for fresh consideration.
Result:
The appeal is allowed, the orders of the High Court and the first appellate court are set aside, and the first appeal is remitted to the District Judge, Panipat for re-hearing and fresh disposal.
Judgment
P.P. Naolekar, J.—Leave granted.
2. The appellant Ajad Singh has filed a suit for declaration and possession of his right, title and interest over the suit property along with Dilawar Singh @ Dilbag Singh and Silak Ram - proforma respondents Nos. 4 and 5 and for mandatory injunction against respondent Nos. 1, 2 and 3 for removal of superstructures raised by them over the suit lands and for restraining them from interfering with the possession of the appellant. The case of the plaintiff/appellant is that he and respondent Nos. 4 and 5 are real brothers and the property in suit came to them in partition effected between them and their uncle Puran. The respondent Nos. 1, 2 and 3 have encroached upon the suit lands on 2.1.85 by storing some pucca bricks on the suit land and thereafter have raised some construction over it. The defendant-respondents have not vacated the land in spite of demand by the plaintiff-appellant. The defendants/respondents Nos. 1, 2 and 3, filed their written statements denying the right, title and interest of the appellant over the suit land and claimed that they were in possession of the suit land for the last 60 years which had ripened into ownership by way of adverse possession and the construction made over the land was in exercise of that right. It was further alleged that appellants as well as respondent Nos. 4 and 5 had admitted the possession of respondent Nos. 1, 2 and 3 of the suit property vide compromise dated 14.10.1985 and thus appellant was prevented by his acts and conduct to pursue the present suit.
3. The trial court appointed a Commissioner for inspection of the suit site and record the evidence of the parties. On the appreciation of the evidence led by the parties and the report of the Commissioner, the trial court decreed the suit filed by the appellant. Aggrieved by the said decree, respondent Nos. 1, 2 and 3 filed an appeal which was heard by the Additional District Judge, Panipat. The First Appellate Court reversed the decree by placing reliance on the compromise (Exhibit - D1) dated 14.10.1985 which was said to have been effected between the parties in the police station. In paragraph 9 of the Judgment, the Court has held that the compromise (Exhibit - D1) dated 14.10.1985 is a very relevant piece of evidence which admittedly has been signed by Ajad Singh but about which no such plea has been raised by the appellant either in the amended plaint or in the replication filed by him on 4.6.1987 as would enable him to avoid the compromise. There is also no pleading from the plaintiff-appellant’s side that the said compromise (Exhibit - D1) was obtained by the police forcibly. He has not stated anything about the compromise in his examination-in-chief and only in the cross-examination he has stated that the compromise was effected by use of force in the police station. On perusal of the compromise, the Court has further held that both the sides have resolved the dispute and respondent No. 1 could remain in possession of suit property, as, according to the compromise, the appellant has already relinquished the right over the site in dispute on 14.10.1985 (Exhibit - D1) itself. Thus, it is made out that the trial court has wrongly rejected the said compromise (Exhibit-D1) by observing that no such permission was obtained to effect the compromise in the police station. The Court further summarized the effect of compromise that the appellant has relinquished his right in the suit land in view of the settlement (Exhibit - D1) dated 14.10.1985 itself and about which he remained mum and knowingly concealed this fact in the pleadings. Thus, after the examination of the said compromise (Exhibit - D1), it is made out that the plaintiff-appellant agreed to withdraw the suit land conceded that Chatra, the defendant No. 1 shall continue to remain in possession of the suit property. On these findings the judgment and decree of the trial court was set aside and the so-called compromise (Exhibit D-1) was held to be binding on the parties.
4. The appellant preferred a second appeal before the High Court which was dismissed in limine. The High Court has reproduced paragraphs 8 and 9 of the judgment of the lower appellate court and concurred therewith dismissing expressing an opinion that the reason given by the first appellate court for dismissing the suit are much weighty, as compared to the reasons given by the trial court which committed patent illegality in decreeing the suit.
5. In this petition seeking leave to appeal preferred by the appellant before this Court, a notice, limited to the question as to why the matter be not remanded back to the first appellate court for decision afresh, was issued.
6. We have heard the learned counsel for the parties and we are satisfied that the case deserves to be remanded to the first appellate court for the reasons stated hereinafter. The High Court as well as the first appellate court have not adverted to the various relevant and important aspects of the case while deciding the matter. And, this we say for the several reasons which follow. First, the provision contained in Order 23 Rule 3 of the CPC has been completely overlooked. The date on which the compromise (Exhibit - D1) is alleged in the written statement to have been entered into between the parties, the suit relating to the property forming the subject matter of the compromise was pending in the Court. The suit could not have been disposed of except by recording the compromise and that too by following the procedure, and recording the satisfaction, contemplated by Rule 3 of Order 23 of the CPC. Secondly, the first appellate court was not justified in observing that the plaintiff had not raised necessary pleadings either in the plaint or in the replication disputing the factum and legality of the compromise. From a perusal of the written statement, we find that necessary pleadings satisfying the requirement of Order 23 Rule 3 of the CPC have not been raised in the written statement. The written statement makes only a bald reference to the said compromise dated 14.10.1985. The plaintiff can be safely assumed to have denied all the averments made in the written statement. Also, we find from the judgment dated 5.10.1985 of the trial court that no specific issue was framed on the pleading raised by the defendant regarding the said compromise dated 14.10.1985. The appellate court ought to have taken note of the fact that the said compromise was recorded in the police station and during the pendency of the suit. Thirdly, the first appellate court ought to have been conscious of the fact that the said compromise is on a plain piece of paper, and so, whether such document was required to be stamped or registered or not? Be that as it may, in our opinion, the very fact that the courts below have overlooked the provisions of Order 23 Rule 3 of the CPC is sufficient to vitiate the judgment and the matter needs to be remanded for consideration afresh.
7. The appeal is allowed. The order dated 26.9.2001 of the High Court dismissing the second appeal in limine as well as the judgment and decree passed by the first appellate court are set aside. The first appeal being Civil Appeal No. 376 of 1999 shall stand restored and is remitted to District Judge, Panipat for re-hearing and deciding it afresh either by himself or assigning it to a Court competent to hear it.
No order as to the costs.
Appeal allowed. Matter remanded.
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