GAJENDRA SINGH Vs. DURGA KUMARI

JUDGEMENT

(1.) This matter arises in the following way : An appeal was filed in this Court on the 7 of April, 1922, on behalf of Rai Bahadur Ghaudhri Gajendra Singh against Srimati Durga Kumari, the relief sought by which was to set aside a decree of the Subordinate Judge of Moradabad, dated the 23 of January, 1922, and the value of such appeal was stated at Rs. 73,841/10. On the 23 of January, 1924, that is to say, nearly two years afterwards, an application was filed on behalf of the respondent to the above-mentioned appeal, which, it should be mentioned, was an Execution First Appeal, asking that the said appeal should be dismissed. The application did not in terms ask this Court to record an adjustment, or to decide any question under Order 23, Rule 3. The affidavit in support of it set out the fact that an agreement and what was called an award made under the said agreement, had been come to between the parties and alleged that the appellant in the said appeal had no right to continue the appeal. The appeal itself together with the application to which I have just referred, which was described by the office of the High Court as a micellaneous application in Execution First Appeal No. 118 of 1922, were connected and heard together before a Bench consisting of my two brothers, Mr. Justice Kanhaiya Lal and Mr. Justice Lal Gopal Mukerji. In an order, dated the 27 of June, 1924, which sets out very clearly the course of events and the authorities which have led to a difference of opinion between certain of the High Courts in India as to the applicability of Order 23, Rule 3, they expressed the opinion that the matter ought to be referred to a larger Bench for decision, and it happened that I myself was then acting in the capacity of Chief Justice, and on the 11 of July, 1924, I made an order directing the case to be finally disposed of by a Bench consisting of these two learned Judges and myself. It came before us on the 31 of July, 1924, when the point was taken that on a question of fact with reference to the so called award and payment, the evidence of the Collector, Mr. H.G. Walton, who was away on leave, was material, and the case was adjourned generally and has now come before us for final disposal with the addition of Mr. Walton's evidence. Speaking for my own part, I am not satisfied that any question of law arises at all. The agreement before us is such that upon general principles of law I am not satisfied that it is necessary to apply any provision of the Code. The provisions of the Code only apply to such proceedings as purport to be taken thereunder. It happens from time to time that things are done by the consent of parties without reference to any special provision of the Code. It also happens sometimes that the parties are governed by some general principle of law, analogous to a provision in the Code, which is not actually to be found in the Code. The most familiar illustration of that is where there has been a binding decision in interlocutory proceedings, in the course of a suit, and one of the parties seeks to question it at a later stage. The Privy Council have held that a decision between the parties in the course of a suit is governed by the principles of res judicata, independently altogether of the special provisions of Section 11 of the Code, and indeed there is no provision of the Code which applies to it. In this case the unfortunate dispute, which is sufficiently described in the previous orders of my brothers and dealt with in great detail by my brother Mr. Justice Mukerji in the judgment he has prepared, was settled by a solemn agreement entered into in writing and executed by the parties on the 10 of February, which is admittedly binding upon both of them unless there is something outside the agreement sufficient in law to destroy it, or to render it of no effect. By that agreement the appellant, who seeks to appeal in Execution First Appeal No. 118 of 1922, agreed for certain consideration therein set out, that he would get his application for permission to appeal to the Privy Council, which was then under consideration in the High Court, and his appeal in the suit for mesne profits, which was pending in the High Court, struck off, and that after the appeal and the application were struck off, he should pay to the present respondent the lady, the amount which might be determined by Mr. Walton, the Collector, on account of all kinds of mesne profits debts of the time of Kunwar Sardar Singh which are alleged to have become time barred expenses incurred in connection with mutation cases, which of course were on the revenue side, civil suits, application for permission, which, although it does not say so, is the application for sanction to prosecute the appellant which had been applied for by the said respondent against the appellant for having forged a will, a suit for mesne profits, criminal case and enquiries in connection therewith, High Court appeal, Privy Council appeal and appeal in the suit for mesne profits. The other party covenanted that she would accept the amount which might be determined by the Collector aforesaid on account of her demands, setting out the various heads under which she was making demands. In the event of these conditions not being carried out, that is to say, the amount determined not being paid, and the appeal and the application not being struck off, the agreement went on to provide that the lady's rights and decrees were not to become null and void. It is clear from this agreement that the striking off of the appeal and the payment of the demands determined by the Collector were concurrent conditions. That is to say, that actual date of the order of any Court withdrawing or striking the appeal off the list, would be of no importance. If the contracting party did not take the necessary steps to have his appeal struck off, the Court could do is for him on an application by his opponent as the Court could treat that as done which ought to be done. Certain arguments have been addressed to us as to the nature of the demands made by the lady, and as to the prospect of her being able to establish them either in a civil Court, or in any other Court, or in any other way as a matter of strict legal right. Such demands, which certainly cannot be complained of on the score of economy or moderation, are set out in the schedule to the agreement. If parties choose to submit their disputes informally to a mutual friend and to agree to accept and do respectively, whatever he decides, it is no business of anybody else that they choose to include claims or demands which knight not be recoverable in a Court of law, or which might be recoverable with great difficulty. The whole essence and meaning of such an agreement is to make an end of legal proceedings and to avoid further controversy.

(2.) In the course of argument before us by the appellant, who claims to go on with this appeal, an effort has been made supported by his affidavit, to show that the agreement was really provisional. That is to say, its performance on both sides was conditional upon an event which was then uncertain, namely, the withdrawal at the prosecution which had been begun against him, Gajendra Singh, for forgery. The case had been actually committed for trial and the date for the first hearing before the Sessions Judge had been fixed. There is no doubt that Gajendra Singh himself, and probably the Collector, would have been glad to see these proceedings abandoned or withdrawn. There is also no doubt that the lady, if she had been master of the situation and able to withdraw the case by the sole exercise of her discretion, would have been willing to have exercised the discretion for a price. So that if the matter were one of contract only, Gajendra Singh could have bought immunity from prosecution. But the matter was obviously not one of contract. Proceedings under Section 476, Cr.P.C. had been set in motion by the Civil Court itself and the decision as to whether they should be allowed to continue, rested not with her, nor even with the District Magistrate, but with the Local Government. In fact the sentence upon Gajendra Singh was one year, and the Local Government re-leased him after he had served for a month and a half. Hopes, however confident, and inducements, however strong, are not in themselves consideration for an agreement, and are only evidence when the learned Vakil called, circumstantial evidence pointing to the possibility of the existence of some condition precedent of the kind suggested. I can only say, after reading the evidence of the Collector, that I am satisfied that whatever operated upon the mind of Gajendra Singh in entering into this agreement, it was no part; of the contract between the parties that the execution of the agreement should be conditional upon the withdrawal of the prosecution. To my mind that condition in fact fails. A further suggestion is made that Gajendra Singh was not in fact a free agent, that is to say, that undue advantage was being taken by the lady of the position into which ha had got himself by committing forgery, and that she was in a position to dominate his will, and that the circumstances of the contract are such as to show that it was made by him under undue influence. I will set out as well as I can what are the facts upon which we are invited to arrive at this conclusion. Mr. Walton, the Collector, undoubtedly recommended to the Local Government that the prosecution should be dropped. He evidently thought that it was not in the public interest that it should continue that Gajendra Singh was a parson who had earned by meritorious conduct in the past a reputation in the neighborhood, and that if this unfortunate dispute with the lady came to an end, the matter might be quietly dropped. He was willing to pay and the agreement left it to Mr. Walton to decide how much the lady should get towards the costs which she had spent in obtaining sanction, and in attending the case for the prosecution before the Magistrate, and to is a just observation made by the learned vakil that a party does not as a rule voluntarily contribute towards the costs of his own prosecution unless at any rate that prosecution is withdrawn. Further, the case was adjourned from day to day and ultimately indefinitely, until the mon July, no doubt by the order of some authority which had reason to believe that the possibility of a withdrawal was under consideration and there is the final observation of a Government official, I think the Legal Remembrancer, that the prosecution must proceed and that the Government had decided upon this course, even if it resulted in the re-opening of what was called the arbitration. The difficulty about this allegation to my mind is two fold. In the first place, in his affidavit filed in support of this application the appellant does not himself say that he was not a free agent, or that he entered into the agreement under undue influence, nor does he allege anything in the nature of undue influence, or any particular instance of it exercised by any particular individual at any particular moment, and, in the second place, I find it difficult to accept a case which sets up a charge of undue influence alleging that a party to an agreement was not a free agent, while at the same time it is contended, and some of the same material is cited in support of it, that he deliberately entered into a provisional agreement with a condition precedent that he should not be prosecuted. The conduct which is relied upon as indicating that he intended to enter into a conditional agreement seems to me inconsistent with the view that he was not acting as a free agent. I am satisfied that this agreement was absolute and unconditional, and that it was the result of the free will and contracting power of the appellant Gajendra Singh. I find myself unable to hold that there was no consideration for it. The lady was a decree-holder and she was executing her decree. She had claims which she was in a position to enforce in the execution Court. She had contingent rights, in the event of the appeals brought against her being unsuccessful, to receive costs already incurred in such proceedings. She had an alleged claim for damages in respect of a large number of bonds or documents of the late Sardar Singh which we call in England "choses-in- action," which she complains had been neglected and allowed to become time- barred by reason of the wrongful acts of her opponent and although she or her advisers did not take much pain to lay the material with regard to this before the Collector, yet to the extent to which material existed, or could be obtained by the machinery of the law in the course of a civil suit, she would undoubtedly have been entitled to recover damages against Gajendra Singh for such loss as she had suffered in that matter. Forbearance to sue and forbearance to take definite steps to enforce legal rights, have always been held to be adequate consideration to support an agreement, particularly an agreement, of this kind, where there are mutual considerations and both; parties are intending, and agree, to make an end of their dispute. On general principles of law, independently of any provision in the Code, I hold that this Court has an inherent discretion to decline to allow an applicant to prosecute an appeal the moment it is satisfied that the appellant by his solemn act and deed testified to by his signature, for what he considered adequate consideration, has expressly abandoned his right and undertaken to withdraw his appeal. To my mind to allow the appeal to go on under such circumstances would be giving effect to a breach of contract, and committing an injustice to the respondent, who is equally bound by the agreement, and would be1, on the part of the Court itself, pessimi exempli, suggesting that this Court had sanctioned and approved a deliberate departure from the solemn act land deed of the party appearing before it. Under these circumstances, according to my view this appeal, on the facts before us, ought, to be dismissed without reference to any of the decided cases. As the matter has been fully argued before my brothers on a previous occasion and before us, I do not hesitate to hold that whatever may be the state of the law under the Code with reference to a case where parties have submitted to arbitration the whole of their dispute arising in a particular suit without the intervention of the Court (which I may observe is not this case, the transaction proved before us seems to me to be an agreement, compromise and satisfaction. of the whole of the subject-matter in this appeal), that the appeal has been adjusted by this compromise and if we ware asked to do so, it seems to me that we ought under Order 23, Rule 3 to pass a decree in accordance with such compromise. The matter has been argued before us as though this Court had been asked to record such a compromise, I cannot find that there is any actual application before this Court asking it to record such compromise, but even if we are entitled to treat the case upon that footing, I am satisfied that the facts in this case bring it within this provision of the Code. I do not propose to consider the differences which have arisen in the various cases cited to us from different High Courts with regard to the difficulties in applying Rule 3 of Order 23. I agree in the main with the judgment in the case of Manilal Motilal V/s. Gokul Das Rowji A.I.R. 1921 Bom. 310. The agreement of the 10 of February before us is really the decisive factor in my judgment. The reference to Mr. Walton was only as secondary and consequential part of that agreement, though no doubt as regards the money a very important feature of it. It has been carried out, and whether you describe the machinery as an arbitration and award, or a reference, or a decision, or an opinion by a third person, seems to me unimportant. It has been carried out in every particular by both parties. It is merely ancient history, and the only thing outstanding is that in spite of his agreement to the contrary, and in spite of his having paid the money, which be agreed that he would pay, the present appellant has not struck out the appeal in accordance with his promise. I think we ought to dismiss the appeal and to direct it to be struck out with coats. Kanhaiya Lal, J.

(3.) I agree generally with the view taken by my learned brother and wish to add a few observations regarding the facts which have given rise to the matter in controversy and the different aspects from which the question can be examined. It appears that Mt. Durga Kunwar was claiming certain pro-party, which had been left by her father, Sardar Singh, and her claim was opposed by Choudhry Gajendra Singh and his son Shambhu Singh on the strength of a will alleged to have been executed by Sardar Singh in favour of Shambhu Singh who was then a minor, In the suit filed by Mt. Durga Kunwar for the recovery of possession of that property, these was also a claim for mesne profits. She succeeded in her suit and got a decree for possession and mesne profits which were left, to be determined in subsequent proceeding. That decree was upheld by this Court. The mesne profits were subsequently adjudged at Rs. 73,841-10-0 on the 23 of January, 1922. The present appeal was filed by Gajendra Singh and Shambhu Singh from that decree.