VASUDEVAN NAMBOODIRI Vs. KRISHAN NAMBOODIRI

JUDGEMENT

(1.) The Writ Petition is filed under Art.227 of the Constitution of India seeking the following reliefs:

(2.) Petitioner is the 6th defendant in a suit for partition, OS No. 10/1971 on the file of the Sub Court, Ottappalam, in which final decree proceedings are now pending. In the final decree proceedings, an advocate commissioner appointed by the Court after measuring out the suit properties prepared a report and plan specifying the allotments to be made in favour of the sharers and the equities to be worked out in effecting partition by metes and bounds. Objections were raised by the parties to the report and plan, and pursuant to which a supplementary report and sketch were also prepared by the Commissioner on orders issued by the Court. Objections against that report and sketch were raised by some of the parties requesting for remitting them to the commissioner for preparation of a proper and correct report and sketch. Discussions to thrash out the dispute and to reach a settlement followed in an adalat conducted by the Presiding Officer and pursuant there to, Ext. P2 order dated 26/01/2009 was passed showing the terms of settlement purported to have been arrived at by the parties and recording the exchange of plots and also concessions made by them in effecting a partition by metes and bounds. The present petitioner, the 6th defendant in the suit and the 5th respondent in IA No. 752/91 (final decree application), later filed a review petition against Ext. P2 order submitting that the recording made by the learned Sub Judge with respect to the exchange of properties and concessions purported to have been agreed upon by him were not true and correct and Ext. P2 order passed by the Court has to be reviewed. Two more review applications, one by the supplementary 24th respondent and another jointly by supplementary respondents 23 and 25 were also presented by those respondents that the settlement recorded in Ext. P2 was without their consent and as such improper and not correct. The learned Sub Judge considered all the review petitions together, found them meritless and dismissed them vide Ext. P3 order dated 13/03/2009. Impeaching the legality, propriety and correctness of Exts. P2 and P3 orders contending that the orders, both of them, are totally unsustainable in law and facts, the petitioner has invoked the supervisory jurisdiction of this Court under Art.227 of the Constitution of India to quash the orders.

(3.) I heard learned Senior Counsel, Mr. V. Chitambaresh appearing for the petitioner, Adv. Mr. Sandeep, for respondents 4 and 6, and Adv. Mr. Sethumadhavan, for the 1st respondent. Respondents 2, 3, 7, 8 and 9 though served, have not entered appearance. Learned Senior Counsel Mr. Chitambaresh inviting my attention to O.23 R.3 CPC which mandated any compromise reached by the parties to be recorded in writing and signed by the parties submitted that whatever recorded by the learned Sub Judge in Ext. P2 as having been agreed to and conceded by the petitioner, 6th respondent, in the final decree proceedings, cannot have the sanction of law as the procedural requirement insulated under the above rule to protect the substantive right of the parties involved in a lis pending adjudication before a Court is flagrantly violated. Learned Senior Counsel relied on Gurpreet Singh v. Chatur Bhuj Goel, 1988 KHC 278 : 1988 (1) SCC 270 : 1988 (1) KLT SN 25 : AIR 1988 SC 400 : 1988 MPLJ 1 to contend that even when settlement is arrived between the parties during the hearing of a suit or appeal or any proceeding, the Court should insist upon the parties to reduce the terms of the compromise in writing subscribed with their signatures. So much so, Ext. P2 order passed by the Court without complying the mandate under O.23 R.3 CPC, it is submitted, cannot be sustained under law. On the factual aspects involved as to the terms of settlement agreed and concessions made by the petitioner / 6th respondent, learned counsel submitted that the recording made by the Court in Ext. P2 order was incorrect and that compelled the 6th respondent to file an application for review which was the proper course to be adopted to correct a mistake committed or error apparent in any order or judgment passed by the Court. The review petition so moved by the petitioner as well as by some other respondents who also questioned the correctness of the settlement recorded in Ext. P2 order, it is submitted, was rejected by the learned Sub Judge under Ext. P3 order without appreciating the incurable irregularities vitiating that order which rendered it sustainable under law. It is also brought to my notice that in a revision filed by respondents 23 and 25 as against Ext. P3 order to the extent the review petition moved by them against Ext. P2 was dismissed by the learned Sub Judge, this Court reversed the dismissal of their review petition as well as the acceptance of the settlement purported to have been made at their instance in Ext. P2 order, directing the learned Sub Judge to reconsider the question of allotment of properties to those respondents in the light of the objections raised by them to the allotment made by the commissioner. A similar direction, after setting aside Exts. P2 and P3 orders in respect of the petitioner is canvassed by the earned Senior Counsel for a reconsideration by the learned Sub Judge, the question of allotment to the petitioner in the light of his objections to the commission report. On the other hand, Mr. Sethumadhavan, counsel appearing for the first respondent inviting my attention to Exts. P2 and P3 orders submitted that what are all stated by the learned Sub Judge in Ext. P2 order was based on the terms agreed upon and the settlement arrived by the parties in the presence of the Presiding Officer, but, later, to retract from the terms conceded to in the settlement for exchanging the properties agreed upon the review petition was filed. Petitioner (6th defendant) was personally and directly involved in the settlement talks, and merely for the reason that the terms agreed upon have not been recorded with his signature, he should not be allowed to retract from the terms agreed upon is the further submission of the counsel. Pointing out that the litigation is continuing for nearly three decades, the learned counsel urged that the case advanced by the petitioner to impeach Exts. P2 and P3 orders is different from the case of the petitioners in CRP No. 211/09 (respondents 4 and 6 in the present petition who are the legal heirs of deceased 4th respondent) as the son of one of the above parties alone participated in the settlement talks, but, not any of those respondents. But, in the case of the present petitioner, the factual situation was different as he was directly involved in the settlement talks and the terms recorded by the Court were based on what was agreed upon by him before the Presiding Officer, which was correctly recorded. None of the other sharers has any dispute with respect to the settlement recorded under Ext. P2 order is also highlighted by the learned counsel to contend that no interference with Exts. P2 and P3 orders is called for.