(1.) This judgment will govern the merits of two regular Second Appeals Nos. 436 and 437 of 1981 as admittedly identical questions of fact and law arise in these for consideration.
(2.) Two separate suits--one for possession and the other for declaration and permanent injunction--were brought by the Plaintiff-Respondents against the Dafendant-Appellants with regard to agricultural land measuring 341 kanals and 3 marlas. As a result of the contest having been raised by the Appellants, both the suits were dismissed by the trial Court on the same day, that is, September 15, 1978. The Plaintiffs preferred two appeals against the two decrees in the Court of Additional District Judge, Hoshiarpur. Though these appeals before him were fixed for hearing on March 12, 1980, yet on February, 27, 1980, the Additional District Judge at the request of the counsel for the parties took up these appeals for final disposal on the basis of a compromise arrived at between the parties. Besides the statements of the counsel for the parties, out of the Dafendant-Appellants, the statement of Dalip Singh Dafendant only was recorded. Dalip Singh admitted that the suit of the Plaintiffs for possession be decreed to the extent of 5/6th share of the suit land. He further stated that the Plaintiffs should not be made to take physical possession of the said land till they get the same partitioned through the revenue staff. On the basis of these statements, the appellate Court decreed the suit for possession to the extent already indicated and dismissed the appeal in the other suit in which relief of declaration and injunction had been claimed as infructuous. Against these two decrees of the appellate Court the Dafendants have preferred these appeals primarily on the ground that there had been no compromise between the parties and the signatures of Dalip Singh Dafendant were obtained by misrepresentation of facts. It is further alleged that the decrees have been passed in complete derogation of the provisions of Order 23 Rule 3, Code of Civil Procedure. Their learned Counsel also maintains that the alleged agreement or compromise was void or at least was viodable and thus could not be made the basis for the passing of the decree against the Appellant.
(3.) After giving my thoughtful consideration to the entire matter, 1 feel, that these appeals deserve to succeed on the short ground that the decrees in question have been passed in complete derogation of the mandatory provisions of Rule 3 referred to above which requires that when a Court is satisfied that a suit pending before it has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall pass a decree in accordance therewith. Admittedly no Such written agreement or compromise deed signed by the parties was filed in the Court at the time of passing of the decrees under appeal. The words "in writing and signed by the parties" as introduced in Rule 3 by the Amending Act of 1976 were incorporated visualising a situation like the one in hand. This amendment appears to be result of long experience in matters of litigation where setting up of oral agreement or compromise normally is not adhered to and leads to further litigation. The provisions of Rule 3 are mandatory in character and the non-compliance thereof certainly renders the decree based on a compromise or agreement not in writing and not signed by the parties as unsustainable. The objection of the learned Counsel for the Respondents that the appeals being against a consent decree are not maintainable in view of the express bar in Section 96(3) of the Code of Civil Procedure to my mind has no weight. The bar to an appeal against a consent decree under Section 96(3) is based on the broad principal of estoppel. It pre-supposes that the parties to an action expressly or by implication waive or forego their right of appeal by any lawful agreement or compromise which has been made the basis of the decree. Therefore, where the agreement or the compromise as envisaged by Rule 3 of Order 23, Code of Civil Procedure, is not there, there is no question of the principle of estoppel becoming operative. The decree could only be passed in terms of the agreement or a compromise which had again to be in terms of Rule 3 of Order 23. Further, I am of the considered opinion that there cannot be any estoppel against a statute. If the law lays down that a decree on the basis of a compromise or an agreement can only be passed if the said agreement or compromise is in writing and signed by the parties, then the Court cannot possibly pass a consent decree on the basis of a compromise or an agreement by-passing the requirement of Rule 3 of Order 23 Code of Civil Procedure.