SUNIL KUMAR Vs. PRITAM SINGH AND ANR.

JUDGEMENT

(1.) The revision petitions are against the orders dismissing applications for review of the decree passed on 07.04.2004 at the Appellate Court. The decree in appeal was a partial reversal of a decree for specific performance granted in favour of the plaintiffs. The defendant, who were the appellants, had claimed that there had been a compromise between the parties and that the plaintiffs were willing to receive the earnest money in lieu of the property for which they had sought for reliefs for specific performance. The Court recorded the statement of the counsel appearing on behalf of the appellants and allowed the appeal setting aside the decree for specific performance and restricting the relief only for recovery of the amounts admittedly received by the defendant. The order was passed on 07.04.2004 and application for review was filed on 24.04.2004. The applications were supported by affidavit of the parties and the contention was that the Judge was pressurizing the parties for entering into compromise and that he informed that if they did not accede to compromise, he would proceed to accept the appeal and dismiss the plaintiffs' suit. Elsewhere in the petition filed for compromise, it was urged that the counsel, who was appearing on their behalf, said that he did not know about the compromise and that he had to take instructions from the plaintiffs but the Judge would not grant such time and the compromise decree was passed even before the counsel could take instructions from the parties, who were not present in the Court. All the applications were dismissed finding that there had been no merit in the contentions raised and there was no proof that any form of threat or coercion was applied by the Presiding Officer on the parties. The further contention by the plaintiffs-respondents was that the compromise had not been in writing in the manner contemplated under Order 23 Rule 3 and that the Court could not have proceeded to accept the compromise and grant a decree in modification of the decree passed by the trial Court without a compromise memorandum duly written therefor settling the terms of compromise. The applications were dismissed and the aggrieved plaintiffs are the revision petitioners before this Court.

(2.) The points raised in the applications, which have been brought out are reiterated in the revisions by the counsel appearing for the petitioners. Learned counsel appearing for the respondents points out that (i) there is no no legal requirement that the compromise must be effected only through a memorandum in writing and it shall be competent for a Court to record the statement of parties or their attorney and grant a decree in terms of such statement. The counsel would refer me to the decisions of the Supreme Court in that regard namely the decisions in Jineshwar Dass through LRs vs Smt. Jagrani and another, 2003 11 SCC 372 and Pushpa Devi Bhagat through LR Smt. Sadhna Rai Vs. Rajinder Singh and others, 2006 5 SCC 566. In the former judgment, the Supreme Court observed that statements of counsel appearing for the parties could be the basis for a compromise decree and non-production of written statement of compromise on record would not vitiate such compromise. The Court, however, was cautioning that it would be otherwise desirable and in the interest of counsel as well as the parties that a compromise was always reduced into writing and signed by the parties before its production on record. The Court was dealing with the specific recitals in the context of Order 23 Rule 3 that makes reference to "in writing and signed by the parties" and held that the textual reference to a 'memorandum in writing and signed by the parties' was only to prevent false and frivolous pleas that a suit had been adjusted wholly or in part by any lawful agreement or compromise. If there was no allegation against the counsel on whose statement the compromise decree was passed, the Court held further that the decree was valid even in the absence of any written document or compromise on record. In a still later judgment in Pushpa Devi referred to above, the Supreme Court was considering the case of a suit for possession by a landlord seeking for eviction of a tenant where the tenant agreed to vacate by a specified date. The compromise had not been reduced in writing in the form of instrument but statement of counsel recorded on oath and a decree was passed. The Court held that statement of counsel recorded by the Court and duly signed by them would be statement in writing signed by the parties within the meaning of Order 23 Rule 3 CPC. In this case, I find that there was no statement anywhere in the application for review that the counsel did not have an authority to compromise or their counsel had acted in breach of trust without instructions. I have seen through the vakalatnama to the counsel in all the three cases and I find that there is a specific authority for withdrawal or compromise or a power to agree to arbitration. If there was no allegation against the counsel acting in breach of instructions or collusion with the other side, then the whole case must depend on whether the averment of the alleged pressure and coercion attributed to the Presiding Officer's conduct could be accepted.

(3.) As regards the contention that the party was pressurized for entering into compromise, there are two conflicting versions referred to in the application for review. In para 2 of the review application, it is stated that on 07.04.2004 that is the day when the compromise decree was passed, the learned Additional District Judge Sh. O.P. Garg had asked the appellants/defendants regarding compromise and in para 3 it is stated that the appellants/defendants had been pressurizing in the Court for compromise and that the learned Judge had openly threatened in Court room that either the parties should compromise or the Court will dismiss the suit. The reference in para 2 to the Court asking the counsel regarding compromise makes reference to date as making any enquiry with reference to the compromise with the plaintiffs/respondents. On the other hand, in the following para it is stated without reference to any date that the Presiding Officer had threatened in the Court room that the matter must be compromised. It does not at least appear that there was any threat held out by the Presiding Officer that the matter should be compromised on 07.04.2004. The manner in which the reference is made in para 2 would make it appear that the date was acquired about a compromise and he was not making threat about compromise on 07.04.2004. Elsewhere in the same review application at para 9, it is averred that no opportunity had been given to the respondents to think over the matter, who were neither present nor any signature on the statement was taken from any one of them. In para 9, it is stated that the counsel had not known that there was any compromise and he asked for time but the Court was bent upon deciding the case there and then. It would seem, therefore, that the plaintiffs were contending that they were not present on 07.04.2004 and that the counsel was pressurized to accepting a compromise and that the Court proceed to issue compromise decree. When they were not present and para 3 did not make any particular reference to a date when the parties were pressurized by the Judge then the most crucial evidence that could have been given by the counsel, who had appeared on their behalf to say that on 07.04.2004 when he was present and when he expressed lack of knowledge of any compromise, the Court proceeded to record his statement even in the absence of parties and the counsel was in any way pressurized to make a statement as though a compromise as spoken to by the appellants had been acceded to by the plaintiffs. It is not as if the plaintiffs did not know that the crucial statement could have given only by their counsel to help them secure what according to them was just. Therefore, when an application was filed for review of the judgment, they had engaged yet another counsel Mr. Bansal filed his vakalatnama and presented applications through other counsel. This at least ensured that there was no embarrassment at the trial that their own counsel on record was becoming their witness. It would have been unethical for a counsel to give evidence in the case where he was appeared. The appropriate procedure in such a case is only to withdraw the authority of representation through vakalatnama authorizing yet another counsel to appear on behalf of the parties and the former counsel to give evidence in support of what the parties were contending for. One would have accepted such a serious allegation made against the Presiding Officer to have been supported by the affidavit of the counsel, who was formerly appearing on behalf of the plaintiffs. As I have observed it is that affidavit or statement of the counsel before the Court, which could have lend a modicum of plausibility to the averments made in the review applications. Neither the affidavit of the counsel nor even a statement of the counsel was brought before the Court at the time when review applications were filed. The recitals what the judgment contains must be taken at its face value or laid down as proposition in many cases. This consideration has come about mostly in cases where a challenge to the concession said to have been made by counsel in Court below are brought in appellate forum. The Supreme Court has given the way that in such situations the Court would go with what is stated in the judgment and if a party wants to contend that any concession or statement attributed to a party was not made by the party or his counsel, the appropriate remedy is only to apply to the very same Court for a review and not challenge the correctness of what the judgment contained in appellate forum. This proposition is laid down in the judgment of the Supreme Court in State of Maharashtra and others Vs. Admane Anita Modi and others, 1995 AIR(SC) 350 where the Court was taking a statement of fact as contained in the judgment by a Presiding Officer as an official act which must be presumed to be correct and the burden to rebut was on the person who challenges the same. The Court was giving the appropriate mode of such challenge by stating that any such observation was to file an affidavit of the person, who was present in the Court and to produce such material which may satisfy the Court that the recitals in the judgment were crept in inadvertently or it was erroneous. In this case, the counsel who had appeared on behalf of the plaintiffs has not supported the allegations made against the Presiding Officer either through affidavit or evidence.