RAM KISHUN RAI Vs. ASHIRBAD RAI

JUDGEMENT

(1.) This is an appeal by the plaintiffs against a decision of Mr. Radha Prasad Singh, Subordinate Judge of Arrah, dated 28th July 1948. This appeal raises an interesting question of law as to the recording of a compromise under Order 23 Rule 3, Civil P. C.

(2.) To lead up to the points for discussion, I may indicate the essential facts. On 8th November 1945, a plaint was presented before the Munsif, Third Court, Arrah, which was registered as Title Suit No. 182 of 1946. In the said suit, the Court directed issue of summonses on the defendants which were duly served, and defendant 1 filed his written statement on 21st February 1946. The issues in the suit were settled in March 1946, and 22nd August 1946 was the date fixed for hearing. The case was, however, adjourned on that date for 16th January 1947. In the meanntime on 28th October 1946, a petition of compromise was filed, and the plaintiffs applied that the compromise should be recorded. This petition along with the compromise filed in the case was ordered to be put up in the presence of the parties on the date fixed for hearing. The petition of compromise is dated 3rd September 1946 and purports to be between the plaintiffs and the defendants to the suit. Although the heading of the compromise petition shows that it is by the plaintiffs and defendants 2 to 6, it also purports to have been signed by Ashirbad Rai, defendant 1, in his own pen. The plaintiffs and defendants 2 to 6 in their petition for recording the compromise alleged that defendant 1 had affixed his signature to the compromise on getting a sum of Rs. 3000 by way of consideration for the compromise as recited in the terms thereof. The plaintiffs and the pleader for defendants 2 to 6 signed the compromise petition but it did not bear the signature of the pleader of defendant I, and it appears from the allegation in the petition for recording the compromise that defendant 1 told the parties that he would get the compromise by his pleader signed on the re-opening of the Court which promise he did not actually carry out. On 16th January 1947, the pleader for defendant 1 intimated to the Court that he had not been served with a copy of the petition filed by the plaintiffs and defendants 2 to 6 for recording the compromise, and the Court directed the plaintiffs to serve a copy of that petition at once on the pleader of defendant 1. On the same day at a later stage defendant 1 thereafter filed a rejoinder to the plaintiff's petition for recording the compromise. In this rejoinder, it is alleged, defendant 1 repudiated the aforesaid terms and his signature thereon, and the Court after a few adjournments directed that the matter should be put up for hearing regarding the compromise on 1st February 1947. In the meantime the plaintiffs were permitted to take photographs of the signature of defendant 1 on the compromise petition, the vakalatnama and the written statement filed in the case for getting them compared by an expert. They also in the meantime took out dasti summons for the witnesses us per isimnavisi filed by them. Defendant 1 also applied for direction on the plaintiffs and defendants 2 to 6 to supply him with copies of their petitions for obtaining photographs in order to enable him to make necessary pairvis. I understand from the parties that the signatures in question were examined by an expert who has submitted a report in favour of the plaintiffs and against defendant 1 While these steps were being taken when the matter was put up for consideration by the Court on 1st February 1947, defendant 1 filed a petition praying to the Court to decide the issues regarding the question of jurisdiction, and to postpone the examination and cross-examination of the expert to some future date after the issue regarding the jurisdiction of the Court to entertain the suit had been decided. The Court adjourned the case on that date and eventually after various adjournments, it took up the issue as to jurisdiction for decision on 21st April 1947. It held that the value of the suit was Rs. 15,000 both for the purpose of jurisdiction and court fees find much beyond the pecuniary jurisdiction of the learned Munsif. In that view of the matter, the learned Munsif held that he had no alternative but to find that the suit was clearly beyond the pecuniary jurisdiction of that Court and hence the plaint was liable to be returned. He, therefore, ordered, the plaint to be returned to the plaintiffs for being presented to the proper Court competent to entertain the suit. The plaintiffs brought up the matter in revision before this Court but their application was dismissed, and the decision of the learned Munsif on the point of jurisdiction and court-fees was affirmed. This brought to a close the first phase of the litigation between the parties. It is apparent from the above that the compromise filed on 28th October 1946, before the learned Munsif was not recorded as it could not be recorded by him, ho having no jurisdiction to entertain the suit itself.

(3.) I now come to the second phase of the litigation which started on 10th April 1948, when the plaint was presented afresh to the learned Subordinate Judge, Third Court, Arrah. The suit was then registered as Title Suit No. 26 of 1948. The deficit court-fees were duly paid and summones were ordered to be issued to the defendants fixing 20th May 1948, for settlement of issues. In the meantime on 1st May 1948, the plaintiffs filed a petition that the compromise petition filed in Title Suit No. 182 of 1045 of the Munsif, 3rd Court Arrah, be called for and kept in a closed cover. On 20th May 1948 summonses were served on defendant 1 who appeared on that date and asked for time to file his written statement which was accordingly granted. On 24th May the plaintiffs applied for recording the compromise called for from the Court of the learned Munsif. This application for recording the compromise was opposed by defendant 1 though the other defendants do not appear to have taken any exceptions to the same. Defendant 1 denied that there was any compromise between the parties, or that he signed the petition of compromise. His allegation was that the compromise petition was a forgery, and the allegations contained therein were false. The question whether the Court was competent to record the compromise filed before the learned Munsif, Third Court, Arrah, was taken up for hearing on 24th July 1948 and the learned Sub-ordinate Judge by his order under appeal passed on 28th July 1948 held that when the compromise was filed, there was no suit pending between the parties, and that being so, the alleged compromise could not be recorded under Order 23, Rule 3 by the learned Subordinate Judge, and the remedy of the parties, if any, was to bring a suit on the basis of the alleged compromise, and for the enforcement thereof. The learned Subordinate Judge, however, did not enter into the merits of the question whether the compromise was genuine or otherwise. It is against this order of the learned Subordinate Judge that the present appeal is directed.