SWAMI NATH Vs. L LAL

JUDGEMENT

(1.) I have heard Sri P.K.Gupta, learned counsel representing the defendants Ist set and also the heirs and legal representatives of the deceased appellant who was also amongst the defendants Ist set and Sri G.S. Srivastava learned counsel who represents the surviving defendants of IInd set. Sri S.K. Verma represents the plaintiffs/respondents no.1 and 2. The facts in nutshell are as under: Original Suit No.56 of 1966 was instituted by Lakhan Lal and Rajendra Prasad for partition claiming half share in the two houses i.e. one situate in Urdu Bazar and the other in Mohalla Dhamool, Gorakhpur. In the said suit the defendants were arrayed in two sets. The defendants Ist set consisted of Swami Nath, Radhey Shyam, Ashok Kumar, Vijay Kumar and Vinod Kumar while the defendants IInd set consisted of three persons namely, Banwari Lal, Rajkumari and Pradumn Kumar (Minor). During the course of the proceedings one Jamuna Ram was appointed guardian of Pradumn Kumar vide order dated 13.11.66 and a written statement was filed on behalf of Pradumn Kumar through Sri Jamuna Lal. The suit was decided vide judgment and order dated 17.3.1972 and the share of the plaintiffs in the aforesaid two houses was declared to be half and that of defendant Ist set and IInd set to be 1/4th each. On the basis of the aforesaid judgment and order a preliminary decree was drawn. Swami Nath, one of the defendants, belonging to the defendants Ist set alone preferred an appeal against the aforesaid preliminary decree. The said appeal was finally decided by this Court on 24.5.1974 on the basis of a compromise wherein apart from the two houses in dispute other family properties were also included which were all mentioned in Schedule A, B, C and D of the compromise. Under the compromise decree the plaintiffs to the suit were given the properties mentioned in Schedule C and D and a shop forming part of the the properties in Schedule A. The defendants Ist set were were allotted the properties mentioned in Schedule A except the shop which was given to the plaintiffs. The defendants IInd set were given the properties mentioned in Schedule B. There was no compromise or decree in respect of the fifth property i.e. a Khandhar which was in possession of the defendants IInd set. The preliminary decree dated 17.3.72 was not proceeded with by any of the parties and no final decree on its basis was prepared. After about 11 years of the compromise decree on 15.11.85 an application for recall of the compromise decree was moved by Smt. Rajkumari and Pradumn Kumar the surviving defendants IInd set, along with an application u/s 5 of the Limitation Act to condone the delay in moving the same. It may be noted that Banwari Lal, one of the defendants of IInd set had in the meantime died issue less. The aforesaid application came to be dismissed in default on 10.5.2004 which order was subsequently modified on 10.8.2004 and it was said that the application also stand dismissed as time barred. Thereafter on 4.4.2008 i.e. after about four years another application was moved by the surviving defendants of the IInd set for recall of the order dated 10.5.2004 and the modified order dated 10.8.2004 whereby the recall application was dismissed in default/as time barred. This is how the matter has now come up before me for consideration of the above applications dated 4.4.2008 and 15.11.85. The sole appellant Swami Nath who was one of the parties in defendants Ist set has died. However, his heirs and legal representatives are on record as respondents in the appeal. The said respondents and the remaining respondents who were defendants of Ist set in the suit are represented by Sri P.K. Gupta. The surviving defendants IInd set are represented by Sri G.S. Srivastava. The plaintiffs, who are respondents no.1 and 2 in the appeal are represented by Sri S.K. Verma, Senior Advocate who has filed counter affidavit to the application dated 15.11.1985. The applicants i.e. Raj Kumari and Praumn Kumar contends that the order dated 24.5.74 passed in this appeal on the basis of compromise is liable to be recalled for the reasons that in appeal no notices were served upon them and as such, they had no knowledge of the appeal. Secondly, they are not parties to the compromise on the basis of which the compromise decree has been passed and the said compromise has not been signed by them or on their behalf. Thirdly, it has been contended that the compromise decree has been obtained by misleading the Court by giving a false impression that all the parties to the appeal have entered into a compromise which has been signed by all of them. This application as earlier stated was dismissed in default/as time barred by the order dated 10.5.2004 as modified on 10.8.2004. Thus, the second application dated 4.4.08 was filed for recalling of the above order on the allegation that Sri S.A. Khan, Advocate through whom the earlier application dated 15.11.85 was filed by had left the practice and shifted from Allahabad in the year 2000 without any intimation to the applicants and when the applicants in 2008 came to enquire about the progress of the matter it was revealed that Sri S.A. Khan is no longer practising and that application has been dismissed in default. Thus, they applied for recall of the earlier order. These two applications have been opposed on behalf of the defendants Ist set on the ground that there was sufficient service of notice of appeal upon the applicants and that they had the knowledge of the compromise decree. Therefore, the applications are not only time barred but are misconceived and are liable to be dismissed. The record of the appeal reveals that one of the applicants herein Pradumn Kumar was a minor. His "Nana" Jamuna Lal was appointed as his guardian by the order of the Court below dated 13.11.66 and a written statement in the suit was filed on his behalf through his aforesaid guardian. In appeal, Pradumn Kumar was shown to be represented through his brother Banwari Lal whi is now dead. Therefore, in appeal the notices meant to be served upon Pradumn Kumar were sent for service upon his elder brother Banwari Lal and the service so affected upon said Banwari Lal upon him was held to be sufficient upon him. Admittedly, Banwari Lal was not the guardian appointed and at the same time the guardian appointed by the Court was very much available therefore, the notices meant for Pradumn Kumar could not have been served upon any other person except the guardian Jamuna Lal. Thus, ex facie the service of notice of appeal upon Pradumn Kumar was not proper and sufficient and consequently it is held that he had no knowledge of the appeal. The compromise on record reveals that both the applicants were not party to the compromise and it has not been signed by them or anyone else on their behalf. The verification of the compromise only establishes that the signatories to the compromise were identified and their signatures were verified by their respective counsel. The verification does not indicate or conclusively proves that the compromise bears the signatures of the applicants also and that their signatures were also verified. Order XXIII Rule 3 of the Code of Civil Procedure provides that a compromise arrived at between the parties to the suit "must be in writing and signed by the parties", then only the Court shall pass the decree in accordance with such compromise. Therefore, on the plain reading of the provisions of Order XXIII Rule 3 of the Code of Civil Procedure no suit/appeal could have been decreed or decided on the basis of compromise until and unless the same has been reduced to writing and is duly signed by all the parties to the suit/appeal. In Lokumal Topan Das and another Vs. Allahabad Bank and another AIR 1998 Allahabad 398 this Court while interpreting the provisions of Order XXIII Rule 3 of the Code of Civil Procedure held that the compromise must be in writing and it must be signed by all the parties. The Supreme Court in Byram Pestonji Gariwala Vs. Union Bank of India and others AIR 1991 SC 2234 and in Jineshwardas (D) by Lrs. And others Vs. Jagrani (Smt.) and another 2003(11) SCC 372 while considering the expression "in writing and signed by the parties" used in Order XXIII Rule 3 of the Code of Civil Procedure ruled that it includes counsel and agent of the parties and therefore a compromise signed by counsel or the agent of the party is binding. In the present case, the compromise on the basis of which the decree has been passed in this appeal was neither signed by the applicants nor on their behalf by any of their agents or the counsel. The verification of the signatures of other persons who have signed the compromise cannot be sufficient to hold that the compromise was entered into and signed by all the parties to the suit/appeal especially the applicants. In K. Venkatachala Bhat and another Vs. Krishna Nayak (D) by Lrs. 2005(3) JT SC 161 it has been observed that the provisions of Order XXIII Rule 3 of the Code of Civil Procedure can be pressed into service even in writ petition but the compromise must be in writing and signed by all the parties. Therefore, the order of the writ court deciding it on the basis of compromise signed and filed by some of the respondents was set aside. Thus, on the face of the legal position that emerges, the compromise on the basis of which this appeal has been decided was not a lawful compromise sufficient to pass the decree. A reading of the order of the Court dated 24.5.74 indicates that the said order has been passed simply on the basis of the statement of the counsel for the parties under the impression that as the compromise stood verified it must have been signed by all the parties to the suit/appeal. The order dated 24.5.74 is reproduced herein below for the sake of convenience: "The compromise between the parties have been duly verified and has been signed by the learned counsel for the parties. The appeal and cross objection are decided in terms of compromise. Let a decree be prepared accordingly. Hon. K.B. Asthana, J. Hon. C.S.P. Singh, J. 24.5.74" Thus, it is apparent that the court was mislead in passing the above order. In view of the aforesaid facts and circumstances, it is established on record that one of the applicants who was admittedly party to the appeal was not duly served and at the same time the applicants are not signatories to the compromise. Thus it cannot be said that there was a lawful compromise/agreement between all the parties to the suit/appeal sufficient for grant of decree. Besides the above the Court was mislead in passing the order dated 24.5.74. Now Order XXIII Rule 3A of the Code of Civil Procedure bars the institution of a suit to set aside a decree which has been passed on the basis of a compromise which is unlawful. There is no provision for appeal against a compromise decree. Therefore, the applicants can not be left remediless and as such, certainly have a right to apply for the recall of the order deciding the appeal in terms of the compromise, particularly when such an order has been passed by giving a wrong impression and misleading the Court. In Banwari Lal Vs. Smt. Chando Devi (through LR) and another AIR 1993 SC 1139, the Apex Court while considering a similar controversy said that order recording a compromise can be recalled where it is shown that the compromise was not lawful. Thus, the Court passing the order on the basis of compromise was held to possess power to entertain application for recall and to allow the same in the above given situation. In nutshell, the applicants have made out a case for the recall of the order dated 24.5.74. The preliminary decree in the suit was passed as far back as on 17.3.1972 but it has not been given effect to. At least till 1983 no progress in the matter was made despite passing of the preliminary decree. It was only on 21.5.1983 that Smt. Gulaichi Devi the widow of late Lakhan Lal who stand substituted in this appeal filed an application for preparation of final decree. It was on the aforesaid application that the parties were given opportunity to file objections and then the applicants had come to know of the compromise decree passed in this appeal. Thus, the application for recall was filed explaining the delay in moving the same. The explanation so given by the applicants cannot be disbelieved as there is nothing positive on record to establish that the applicants had knowledge of appeal or compromise decree at least before the aforesaid date i.e. 21.5.83. It is admitted to the parties that when this application was dismissed in default on 10.5.2004 and when the said order was modified on 10.8.2004 the counsel Sri S.A. Khan who had moved the application had stopped practising and had left Allahabad. There is nothing on record to indicate that before leaving practice he had given any intimation to the applicants or that the applicants otherwise had knowledge that he has left the practice. Much emphasis has been placed upon the statement of Sri Haider Abbas who is said to be an Advocate attached to the office of Sri S.A. Khan, made in Writ Petition No.16157 of 1987 6.5.2005. The aforesaid writ petition was also preferred by the applicants against an order which is said to have been passed in another suit between the parties which was instituted subsequently for the partition of the properties which were left out from the suit in question. Sri Haider Abbas stated that the applicants have withdrawn instructions and have taken away the file. On the basis of such statement made it has been contended that the applicants had knowledge that Sri S.A. Khan is no longer practising. In reply it has been submitted that the applicants had never engaged Sri Haider Abbas and that he had no authority under law to have made any such statement as the applicants never withdrew instructions from Sri S.A. Khan in any of their case. Moreover, the statement so made was only in respect of writ petition no.16157 of 1987. The said statement could not have governed the other matters of the applicants which were being dealt with by Sri S.A. Khan. There is nothing on record to indicate that the applicants have withdrawn instructions from Sri S.A. Khan in this appeal. In short, in absence of any positive material on record to establish that the applicants had knowledge about Sri S.A. Khan leaving practice, the cause for absence on part of the applicants from court leading to rejection of their application for default or time barred particularly when their application for condoning of delay was also pending and was not even considered is bonafide and sufficient. There may be some latches on their part in not keeping up-to-date knowledge of the progress in the matter but nonetheless no negligence can bee attributed to them for dismissal of the application in default and for the delay in moving the second application dated 4.4.2008. In the aforesaid facts and circumstances, taking a pragmatic view of the whole matter and in the ends of justice, I consider it fair and reasonable to condone the delay in moving the applications dated 4.4.2008 and 15.11.85. The orders dated 10.5.2004 as modified vide order dated 10.8.2004 are recalled and after restoring the application dated 15.11.1985 to its original number for the same reasons, as stated above, allow the application dated 15.11.1985 and also recall the judgment and order dated 24.5.74 passed on the basis of the compromise. The appeal as such, is restored to its original number for decision afresh on merits. However, the applicants have to pay a nominal cost of Rs.5000/- which shall be deposited by the applicants with the Registry of the Court within a period of six weeks from today. Since the compromise decree has been recalled and the appeal has been restored to its original number and is to be heard on merits, it may be listed before the appropriate Bench. It is further provided that as during the pendency of the proceedings most of the parties as per the memo of appeal, are no more and the matter was being contested on the basis of the aforesaid two applications only, the learned counsel for the parties are permitted to move proper applications for bringing on record the heirs and legal representatives of all the deceased parties and, if necessary, to get one of the contesting parties transposed as the appellant, inasmuch as this appeal arises from a suit for partition wherein all parties stand on equal footing, i.e. either as a plaintiff or as a defendant. It is necessary to set the record straight. In the meantime, preparation of final decree may go on but it shall not be signed without the leave of the court and at the same time there shall be an order of status-quo in respect of the properties involved in the suit.