Ramjanam v. Bindeshwari

Sarjoo Prasad, J.:— This appeal has been preferred against an order of the learned Subordinate Judge of Chapra adopting a compromise arrived at between the parties under Order 28, rule 8, Code of Civil Procedure. In my opinion, it is a very unfortunate litigation and it should not have been allowed, to develop. It will presently appear from the facts, stated below that a litigation of this character amounts to an abuse of legal processes.

The appeal in question arises out of two title suits which were being tried together before the learned Subordinate Judge, the parties to the suit being common. One of the suits. Title suit no. 72/7 of 1944/46 was instituted by the plaintiff-respondent, Bindeshwari Bai, for specific performance of a contract of sale in respect of a house belonging to defendants 1 and 2 who are the appellants in this Court. These appellants have a house in mahalla Ratanpura of the town of Chapra. One portion of this house is a two storied building and the other portion is one storied. The plaintiff, Bindeshwari Bai, who carries on the profession of singing and dancing in the town of Chapra, came to occupy the two storied-portion of the house in question as a tenant on rent, whereas if appears from the evidence that the other portion of the house which is one storied, was in the occupation of the defendant Ramjanam Tewary himself. The plaintiff's case in this suit was that on the 12th of January, 1944, the defendants agreed to sell to her the two storied portion of the house in her occupation offering to execute the sale deed within a period of six months, and on the 18th of January, 1944, accordingly a sum of Rs. 2,000 was paid as earnest money to the defendants-appellants. On the 21st of June, 1944, defendant no. 1 purchased a stamp-paper worth Rs. 112-8-0 for the execution of the sale deed in question, but later on the defendants failed to do so on one pretext or another. The plaintiff thereafter sent a notice to the defendants asking them to execute the sale deed in question, but the defendants sent a rejoinder refusing to do so and making certain counter-allegations, one of them being that there was a contract for sale of both portions of the house in question for a consideration of Rs. 10,000. The plaintiff accordingly instituted the suit referred to above for specific performance of contract as alleged by her.

The defendants filed their written statement in the suit. In their written statement they did not dispute the fact that there was a contract on the 11th of January, 1944, in pursuance of which a sum of Rs. 2,000 had been paid as earnest money to the defendants on the 13th January, 1944. They alleged, however, that the contract in question was in connection with the sale of the entire house holding no. 512/513/496 old and new, including the pucca portion on the east and the wall to its west and the filed portion of the house further west, all specified in Schedule B of the written statement for a total sum of Rs. 10,000. They also alleged that, the agreement further was that the sale deed should be executed within a period of three months from the date of contract when the balance of, Rs. 8,000, the consideration money, would be paid by the plaintiff to the defendants and that not having been done, the defendants did not execute the sale deed in question. The other suit, namely, Title suit 249/29 of 1944/45 was instituted by the defendants-appellants against the plaintiff, Bindeshwari Bai, for arrear of rent and for ejectment. As I have said, with the consent of parties the two suits were made analogous and were being tried together by the learned Subordinate Judge.

When the hearing of the suit was proceeding on the 17th of April, 1947, the pleaders of the parties informed the Court that the dispute between them had been settled by a compromise, and that a regular compromise petition would be filed later. On the day following the parties filed a joint petition embodying therein the terms of the compromise which showed that on the payment of a sum of Rs. 7,750 to the defendants-appellants by the plaintiff the defendants would execute a sale deed with respect to both the portions of the house in favour of the plaintiff. It is this compromise petition which has been the subject-matter of controversy in this appeal. In this petition the parties further prayed that at least seven days' time should be allowed to them within which the sale deed would be executed and a regular petition filed in Court for disposal of the case. The bearing was accordingly adjourned to the 24th of April, 1947, to enable the defendants to execute the sale deed in favour of the plaintiff on payment of Rs. 7,750. It appears, however, that the sale deed was not executed by the defendants, and on the 24th as soon as the Court at, the courts then being held in the morning, a petition was filed on behalf of the plaintiff-respondent, Bindeshwari Bai, stating that the defendant were evading execution of the sale deed, though the plaintiff was ready with the sum of Rs. 7,750 for payment to the defendants under the terms of the compromise aforesaid. The Court then called the other party and after hearing both sides, a final draft of the sale deed was approved with their mutual agreement. This draft is exhibit 5 in the case. In spite of all this it appears that the sale deed was neither executed by the defendants nor presented for registration, and at about 11 a.m the same day the plaintiff was driven to the necessity of filing a petition in Court stating that although the sale deed had been prepared according to the agreed draft, the defendants-appellants had made themselves scarce, and, therefore, she prayed for permission to deposit the sum of Rs. 7,750 in Court. The Court tried through the defendants' pleader to secure their attendance before it, but being unable to do so, it finally directed the money to be deposited in Court. This deposit the Court had to accept presumably in view of the terms of the agreement which was to the effect that if the sum of Rs. 7,750, the balance of the consideration amount, was not paid by the 24th of April, 1947, the plaintiff. Bindeshwari Bai, would forfeit her claim to the house and to the earnest money of Rs. 2,000 already paid to the defendants.

On the following day, that is, the 25th of April, 1947, separate petitions were filed on behalf of the plaintiff and the defendants in which both parties respectively claimed that the terms of the compromise should be given effect to and the suits should be disposed of in favour of the respective parties. The petition of the defendants filed on that day is rather important. In that petition the defendants stated that in the above two suits, already referred to, the parties had come to terms and had accordingly filed a petition of compromise on the 18th of April, 1947, to the effect that the plaintiff in Title suit no. 72/2 of 1944/46 would buy the disputed house and the western portion thereof for a sum of Rs. 9,750 out of which Rs. 2,000 having already been paid, the balance of Rs. 7,750 was payable to the defendants on the 24th of April, 1947. They however, alleged that on the 24th of April, 1947, which was the date, according to them, for the registration of the sale deed in a question, the defendants were all along waiting near the registration office to admit execution and to receive the consideration money, but the plaintiff did not either herself present the sale deed or make over any fair copy thereof to the defendants for presentation before the sub-registrar. They, therefore, stated that the plaintiff was responsible for not acting up to the terms of the compromise presumably because she had not the required money in her hands to meet the balance of the consideration amount. The defendants, therefore, prayed in the petition that the failure on the part of the plaintiff to carry out the terms of the compromise could not stand in the way of the enforcement of the terms thereof, and they accordingly prayed to the Court that the compromise should be recorded, and that in view of the plaintiff's failure to carry put its terms, her suit namely Title suit no. 72/7 of 1944/46 should stand dismissed and Title suit no. 249/39 of 1944/45 filed by the defendants against the plaintiff should stand decreed. I have referred in some detail to this petition of the defendants as it will have a material bearing upon the contentions advanced before this Court. The plaintiff, on the contrary, alleged that the failure, if any, to carry out the terms of the compromise was on the part of the defendants and that she was all along ready with the consideration money and the fair draft, for the execution of the sale deed, but the defendants themselves avoided execution thereof by making themselves scarce with the result that she was compelled to deposit the amount in Court. She accordingly prayed; that the compromise should be recorded and the terms thereof given effect to in her favour.

The learned Subordinate judge was, therefore, confronted with the question as to who was at fault in not acting up to the term of the compromise as the parties very seriously contended that neither of them was at fault but that the fault lay with the opponent. It is on this point alone that evidence was adduced by both the parties and both of them seemed to be agreed that there was a concluded agreement between them as embodied in the petition filed before the Court on the 18th of April, 1947. The learned Subordinate Judge having fully discussed the evidence on the point came to the finding which is, in my opinion, wholly justified that

“There has been a compromise in these cases and that the plaintiff, Bindeshri Bai, has acted upon the terms of the compromise”.

He also came to the finding, again I must say rightly, that the defendants

“themselves made it impossible for the plaintiff to present the document for registration before the Sub-Registrar”.

The finding and the evidence on that point has not been assailed before this Court, and, in my opinion, could not be successfully assailed. After coming to this finding, the learned Subordinate Judge held on the authority of the decision of the Judicial Committee of the Privy Council in Hemanta Kumari Devi v. Midnapur Zamindari Co. Ltd. that the entire compromise as embodied in the joint petition of the parties dated the 18th of April, 1947, should be incorporated in the decree, and that the operative part of the decree should be confined only to the subject-matter of the suit which in his view was only a portion of the house, namely, the portion in occupation of the plaintiff herself. In regard to this portion the learned Subordinate Judge held that the decree was executable. In regard to the other portion of the house, he, however, directed that the plaintiff would be at liberty to bring a separate suit for specific performance of the contract on the basis of the compromise decree. The result of recording the compromise was that Title suit no. 72/7 of 1944/46 instituted by the plaintiff was decreed, whereas the other suit filed by the defendants was dismissed in terms of the compromise petition.

It is against this order of the learned Subordinate Judge that the present appeal is directed, and it is rather unfortunate, as I said in the beginning, that a lawful agreement of this character adjusting the dispute between the parties and validly arrived at between them should be sought to be avoided by the defendants, one of them, Ramjanam Tewari, Being himself as I find from the record, a man of some education and a retired inspector of police. This is all the more surprising when it is found that the factum of the agreement has not even been impugned by the defendants.

Mr. Awadh Behari Saran who appears for the appellants has contended, in the first place, that the learned Subordinate Judge has acted illegally in going into the question as to who was at fault in not carrying out the terms of the compromise. He submits that all that the learned Subordinate Judge was entitled to do was to enquire whether the suit had been adjusted wholly or in part by any lawful agreement or compromise between the parties, and to record such a compromise, if any, and pass a decree in accordance therewith in so far as it related to the suit. It was not his business to enter into any investigation as to who was at fault in committing a breach thereof. It is true that under Order 23 rule 3, Code of Civil Procedure, the Court's duty is to enquire whether there has been any lawful agreement or compromise adjusting the dispute between the parties and to record such a compromise if found to exist. On the point that there was a lawful agreement, both parties appear to have been agreed and had invited the Court to record the compromise as embodied in their joint petition dated the 18th of April, 1947; but they wanted to take advantage of the terms in their favour in having consequential orders passed in their respective suits pending before the learned Subordinate Judge. In doing so, the parties threw the blame upon each other and that necessitated the enquiry by the Court. The learned Subordinate Judge himself points out:

“I may mention in the very beginning that these cases have acquired undue importance in view of the fact that the parties are very seriously contending that neither of them are at fault, and that the fault lies with their opponent”.

Parties adduced evidence accordingly, and therefore the Court could not but enter into the question. In one sense the determination of the question was also material because it affected the orders to be passed in the disposal of the two suits pending before him as based upon the terms of the compromise petition itself. I do not, therefore, see that there was anything wrong in the procedure adopted by the learned Subordinate Judge. I may in this connection refer to a decision of Sir George Rankin in Haridas Modak v. Ramdas Modak. This case was relied upon by the appellants' Counsel himself in connection with another point. In this decision Sir George Rankin appears to have deprecated the omission to adopt such a procedure. Criticising the conduct of the learned Judge below his Lordship observed:—

“What the learned Judge could have done at the instance of the plaintiff or defendant was to make an enquiry as to whether the defendant had failed to do what he had promised and whether he had failed by reason of some cause afforded by the plaintiff. The learned Judge did not purport to do that at all……”

In my opinion, therefore, the procedure adopted by the learned Subordinate Judge was correct and necessitated by the circumstances of the case and the conduct of the parties themselves.

The next argument on behalf of the appellants is that there was no concluded agreement between the parties, and that the petition filed on the 18th of April 1947, on behalf of the parties did not contain the terms of any concluded compromise, but that the final agreement adjusting the suit depended upon the execution of the sale deed and the payment of the consideration money of Rs. 7,750 on the 24th of April, 1947, which contingencies had to be fulfilled before a final compromise could take place between the parties. Reliance is placed upon paragraph 7 of the said petition to support the contention that the parties asked for seven days' time during which the sale deed was to be executed and a regular petition was to be filed in Court for disposal of the case. This contention, in my opinion, is quite untenable. The aforesaid petition dated the 18th April, 1947, quite clearly shows that the parties had compromised both the suits and under the terms of the compromise the defendants were to execute a registered sale deed in favour of the plaintiff, Bindeshwari Bai, in respect of the entire pucca and kutcha houses nos. 512/496 as per boundaries given in the petition. It further showi that the amount of consideration settled between the parties was Rs. 9,750 out of which Rs. 2,000 having been already paid, the balance of Rs. 7,750 was to be paid by the plaintiff to the defendants in one lump sum within seven days from that date, that is, by the 24th of April, 1947, failing which the plaintiff was to forfeit her claims to the house and to the earnest money already paid by her, and there was a further penalty provided, namely, that she was to be ejected from the house in her occupation and the title suit filed by the defendants, namely, 249/39 of 1944/45 was to be decreed, whereas title suit no. 72/7 of 1944/46 was to be dismissed. It further appears from the petition that if this money was paid on the 24th of April, 1947, then the sale deed would be executed and the defendants would not make any claim for the various charges for rent and municipal dues, etc., which was the subject-matter of the suit instituted by them which suit in that case was to be dismissed, whereas the plaintiff's title suit was to be decreed and the parties were to bear their own costs. It is not only that the terms have been stated with, sufficient clarity in the compromise petition but that the parties themselves intended it to be a final adjustment between them and they regarded it as the final adjustment and compromise of their disputes. I have already referred to their petition dated the 25th of April, 1947, in which the defendants themselves regarded this petition dated the 18th April, 1947, as a petition of compromise adjusting the dispute between the parties and inviting the Court to record the said compromise by noting that title suit 72/7 of 1944/46 should stand dismissed and Title suit 249/39 of 1944/45, namely, the suit filed by the defendants should stand decreed. We further find that in another petition of rejoinder dated the 29th April, 1947, filed by the defendants, they again reiterated the same position and regarded this petition dated the 18th April, 1947, as a lawful agreement between them adjusting the disputes in the suits pending before the learned Subordinate Judge. In that rejoinder petition they again prayed that the plaintiff by her non-performance of the terms of the compromise had forfeited her rights, and that therefore the compromise should be recorded in favour of the defendants. Even in the grounds of appeal before this Court there is no ground taken that this was not a concluded agreement between the parties. In view of these facts it is not open to the appellants to raise this contention before this Court. The learned Counsel for the appellants, however, says that this contention arises as a pure question of law on the construction of the petition dated the 18th April, 1947. The question whether or not there has been a completed agreement between the parties is largely a question of fact and depends also upon how the parties themselves regarded the matter. If they themselves regarded the matter as one of concluded agreement between them, it is not open to us to say specially when all the terms have been embodied in the joint petition filed by them that there was no concluded agreement. The question whether the sale deed was executed or not would not affect the terms of the compromise because there was no penalty attached to it, and this could as well be done in execution of the compromise decree. Paragraph 7 of the petition itself shows that the parties made a prayer for at least seven days' time during which the sale deed could be executed. The term “at least” indicates that a discretion was left to the Court to grant even a shorter or longer time for the purpose, and it was not a matter entirely in the region of contract made by the parties. The learned Counsel for the appellants has relied in this connection upon a case to which reference has already been made by me in an earlier part of the judgment, viz., the decision in 34 C.W.N 1068. In that case the question was whether a certain petition filed in Court could be regarded as a completed agreement between the parties. Even as an illustrative case the decision is entitled to great respect being a decision of Sir George Rankin. It is not very clear from the report, however, as to what the contents of the petition were, but it appears that in the last clause of that petition there was a recital to the effect that “the parties will complete everything before Thursday next” and the case was accordingly adjourned to that date. We do not know what this recital actually connotes and whether those things which were left to be completed by the parties had any material bearing upon the other terms contained in the petition. Under those circumstances, it was held that it was not a completed agreement between the parties. But whatever the facts of the case may have been, the principle embodied in that decision entirely supports my view. As his Lordship put it, the real question is what was the bargain between the parties? Did the parties mean to commit themselves to the bargain as it was stated on the 20th November or did they mean to wait till Thursday and then have a completed settlement……It was abundantly clear to my mind that the intention was the latter.” Now putting the same question here, the answer is obvious that the parties meant to commit themselves to the bargain as contained in their application dated the 18th April, 1947. There is nothing to show in the whole body of that application that if the sale deed was not executed, it was open to either of the parties to resile from the terms of the agreement as embodied in the petition nor did they ever intend to do so as I have already shown from the various petitions filed by the parties subsequent to this application and from their conduct, as stated above. The learned Counsel has also relied upon a decision of a single Judge in Shah Nawaz v. Ghulam Mohammad in which it has been held that any agreement providing for a decree one way or the other being passed in future on the happening or not happening of a certain contingency cannot in law be regarded as an adjustment. The language though widely framed has to be read in the light of the facts of that case which was a case relating to an agreement between the parties to a suit for its being decided in favour of the plaintiff or the defendant according as the defendant did or did not take oath on the Holy Quran. Such an agreement did not amount to an adjustment within the meaning of Order 23, rule 3, Civil Procedure Code. An agreement of this character cannot prima facie amount to an adjustment of matters in dispute in the suit, and, therefore, could not be given effect to under Order 23, rule 3. Civil Procedure Code. It depends upon a special oath being taken by a certain person which under the law he cannot be compelled to take. That being so, such an agreement cannot come within the meaning of Order 23, rule 3. The said decision, therefore, cannot be any guidance to us in deciding the present appeal. I, therefore, find that there is no substance in this point as well.

The next point taken by the learned Counsel for the appellants is that the decree is illegal inasmuch as it purports to decree the plaintiff's suit which in effect means that the plaintiff's claim for the sale in respect of one of the houses only for a consideration of Rs. 6,000 is decreed. This contention is incorrect on the very face of the decree passed by the learned Subordinate Judge. What the learned Subordinate Judge has done is that he has decreed the suit of the plaintiff in terms of the compromise petition. He has not split up the consideration amount at all. He has held that the total consideration is Rs. 9,750 is embodied in the compromise petition, and that the contract refers to the sale of both the houses. But following the decision of the Privy Council in Hemanta Kumari Debya's case he confines the operative part of the decree which is the executable part only to the house in occupation of the plaintiff because in his opinion that was the subject-matter of the title suit instituted by her. In respect of the other house, he held that although the entire consideration amount has been paid, the plaintiff would be entitled to bring another suit for specific performance on the basis of the compromise decree because he thinks that Part of the decree could not be an executable decree. This aspect of the case we will have to consider at a later stage. But I do not see how the decree splits up the consideration at all, and, in my opinion, this contention is Wholly misconceived.

The last point urged on their behalf is that the Court had no jurisdiction to accept the deposit of the money made by the plaintiff-respondent; Bindeshwari Bai, on the 24th of April, 1947. The validity or invalidity of the acceptance of this deposit does not in any manner affect the legality of the compromise itself. This position is not contested by the learned Counsel for the appellants. His contention, however, is that the acceptance of the deposit was beyond the powers of the Court acting as it did within the four corners of Order 23 rule 3, Civil Procedure Code. It has to be remembered that the deposit was in accordance with the terms of the compromise itself, and the Court having seisin of the matter, it is difficult for me to comprehend why he could not accept the deposit when the defendants refused to take the money or avoided execution of the sale deed. The Court had complete jurisdiction to make consequential orders in order to give effect to the terms of the compromise and to record the same. In doing so, the Court was acting ex debito justitiae and had complete jurisdiction to do so whether as an act incidental to recording the compromise itself or under the exercise of its inherent powers.

I have dealt with all the points urged on behalf of the appellants. As I have shown, there is no substance in any of the points raised and I see no reason to interfere with the decision under appeal. The only matter which now remains for consideration is whether the decree passed by the learned Subordinate Judge is correct. If the subject-matter of the suit embraces only one of the houses, then I have no doubt that the decree is correct and is in consonance with the decision of the Judicial Committee of the Privy Council in Hemanta Kumari Debya's case followed by the learned Subordinate Judge. If on the other hand, the subject-matter of the suit, embraces both the houses belonging to the defendants and referred to in the compromise, then the decree of the Court below needs modification. We can make this modification under Order 41 rule 33 Civil procedure Code, notwithstanding the fact that there is no appeal by the plaintiff-respondent. I may as well observe that at one stage Counsel for the appellants himself submitted that the subject-matter of the suit covered both the houses.

The question then boils down to this. What is meant by the expression subject-matter of the suit? No hard and fast rule can be laid down as to the meaning of this expression which will inevitably depend upon the facts of each case. The question, whether a particular term of a compromise relates to the subject-matter of the suit has to be answered on the frame of the suit, the reliefs claimed and the matters which arose for decision in the case on the pleadings of the parties. The term is comprehensive enough and if the compromise relates to all those matters which fell to be decided in the case, it could not be said that any part of the compromise was beyond the subject-matter of the suit. There is a large body of authority to show that where a compromise relating to matters outside the scope of the suit is a part of the consideration for the agreement as to matters in suit, the entire compromise as an integral whole must be recorded and decreed as relating to the suit whether they otherwise relate to the suit or not. But the present case stands on a stronger footing. Here the defendants-appellants themselves contended that the contract for sale related to the sale of both the houses referred to in the compromise petition. That being so, the matter whether the contract for sale related only to one house or to both the houses was entirely within the scope of the suit, and had to be decided in the case. Parties, therefore, could come to an agreement in regard to this matter and agree that the contract in question related to both the houses. In effect that is what they have done and the compromise, therefore, as affecting both the houses falls within the subject-matter of the suit. In Charu Chandra Mitra v. Sambhu Nath Pandey which is a Full Bench decision of this Court, it has been observed by Atkinson, J. at p. 268 of the report that where, as in the present case:—

“the compromise was really an adjustment of the rights and differences in respect of all matters in dispute between them whether as framed in the plaint or set up by way of defence in the written statement and that the compromise purported to be a final settlement and adjustment of these disputes on a fair and satisfactory basis acceptable to all”,

it must be held to relate to the suit which expression should receive an extended construction. It must be therefore, held that the compromise in so far as it relates not only to the house in occupation of the plaintiff but also in respect of the other house referred to therein has to be regarded as forming the operative part of the decree with the result that the entire compromise decree could be executable as such.

Subject to this modification relating to the form of the decree, the appeal fails and must be dismissed with costs.

Das, J.:— I agree entirely. The appeal has no merits, and it is really an attempt, not very creditable, of getting out of a concluded bargain—possibly the price of the houses has gone up since the compromise.

G.N.P

Order accordingly.