GAYA PRASAD SINGH Vs. SHEO MURAT SINGH

JUDGEMENT

(1.) THE only point which has been urged by counsel for the appellant in this appeal is that the compromise on the basis of which the suit has been decided even though in writing had not been signed by the parties but had been signed by their advocates and consequently no decree could have been passed on its basis in view of the insertion in Order XXIII Rule 3 CPC of the words "in writing and signed by the parties" by Sec. 74 of the CPC Amendment Act, 1976. It was urged that the term "parties" used In Order XXIII Rule 3 CPC did not include their counsel. In my opinion there is no substance in this submission. Order III Rule 1 CPC specifically provides that any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. THE use of the term "parties" in Order XXIII Rule 3, according to counsel for the appellant, brings the matter within the purview of the words "except where otherwise expressly provided by any law for the time being in force" occurring in Order III Rule 1 CPC. I find myself unable to agree with this submission either. In my opinion the words "except where otherwise expressly provided by any law for the time being in force'' refer to some provision say for instance as contained in Order XXXIII Rule 3 CPC which deals with presentation of an application for permission to file a suit as an indigent person. It inter alia enjoins that notwithstanding anything contained in these rules, the application shall be presented to the court by the applicant in person. In view of the specific provision contained in Order XXXIII Rule 3 CPC such an application has to be presented by the applicant in person and its presentation by an advocate of such person is excluded. Order XXIII Rule 3 does not use any such expression that the compromise is to be signed by the parties in person.

(2.) THERE are other provisions which exclude the appearance of a party through an advocate for instance in cases under the Industrial Disputes Act and some other enactments. Those and like provisions will be covered by the expression "except where otherwise expressly provided by any law for the time being in force". Simply because the term "parties" has been used in Order XXIII Rule 3 CPC it cannot be said that a compromise in writing can be signed by the party alone in person and not by its advocate. I am, therefore, of the opinion that if a compromise has been reduced to writing and is signed even by the advocates of the parties the requirement of Order XXIII Rule 3 CPC is complied with and a decree can be passed on the basis of such a compromise if other conditions of Order XXIII Rule 3 are fulfilled.