SCINDIA POTTERIES AND SERVICES PVT LTD Vs. SADHNA

JUDGEMENT

(1.) THE brief facts relevant for the purpose of deciding this petition are that petitioner company had filed a suit for possession against one sh. Chunni Lal in respect of quarter No. 101 at Scindia Cottage. During pendency of the suit, Chunni Lal expired on 16th December, 1989 whereupon his legal heirs, i. e. , his wife and two sons were brought on record. A decree for eviction was passed on 30th April, 2003 by the Civil Judge against all the legal heirs of Chunni Lal. The legal heirs collectively preferred an appeal against the judgment and decree before the Court of ADJ. This appeal was disposed of on 8th December, 2003 on the basis of a compromise between the parties and 2 years time was granted in terms of the compromise to the appellants including respondent no. 3 for vacating the premises. The two years time expired on 8th december, 2005. After expiry of this 2 years' time the respondent no. 3 filed an application under Order 41 Rule 19 CPC read with Section 5 of Limitation Act for re-admission of the appeal and for condonation of delay in filing application. The respondent no. 3 took the ground that the application under order 23 Rule 3 CPC read with Section 151 for compromise was moved before the appellate Court by her mother and other brother in collusion with the petitioner, without informing him and the Court allowed the compromise and dismissed the appeal as withdrawn. He had not singed the aforesaid application neither filed an affidavit and he had also not instructed his counsel to withdraw the appeal. Thus, the compromise entered into between the petitioner and the appellants was not binding on him. The statement made by his counsel in the Court on his behalf was without his instructions and consent.

(2.) THIS application was contested by the petitioner who refuted the charge of collusion and stated that compromise was voluntarily entered into between the parties. No explanation was given by the appellant as to why he did not approach the Court immediately after the appeal was disposed of on 8th december, 2003. There was an unexplained delay of more than 2 years in filing the application and the applicant/respondent had also not preferred any action against his counsel or against his mother and brother who, according to him, acted contrary to his instructions. The Appellate Court framed the following issues :

(3.) DISCUSSING both the issues together, the learned ADJ came to conclusion that appeal was filed by Mr. P. K. Singhal, Advocate on behalf of applicant since he was the Advocate of the appellants before the Trial Court. In that very capacity he filed the application under Order 23 Rule 3 CPC. The applicant was minor when he was impleaded before the Trial Court as successor of chuni Lal. He did not execute any separate Vakalatnama in favour of Mr. P. K. Singhal, Advocate when he became major. Mr. P. K. Singhal, Advocate was engaged by deceased father of the appellant. Mr. P. K. Singhal, Advocate was not engaged independently by Smt. Sadhna, widow of Chunni Lal or by Suraj and Neeraj, the other two brothers. Therefore, Mr. P. K. Singhal did not have valid authority on behalf of any of the appellants to act as an Advocate. Since Mr. P. K. Singhal could not act on behalf of the appellants in terms of Order 3 Rule 4 cpc, as he had not been appointed by a written document, therefore he was not an advocate of the applicant and he had no authority to enter into compromise on behalf of the applicant under Order 23 Rule 3 CPC. The application and the compromise filed by Mr. P. K. Singhal in the capacity of pleader was not binding on the applicant and therefore the Trial Court observed that the appeal was liable to be revived.