Viney Mittal, J. - The present appeal has been filed by Varinder Singh, who is arrayed as defendant No. 1 in the main suit. The challenge is to the order dated September 5, 1987 passed by the Additional District Judge, Patiala, whereby an order dated July 16, 1986 passed by Senior Sub Judge, Patiala has been set aside and the case has been remanded back to the trial Court for commencement of further proceedings, in accordance with law.
2. Jagjit Singh (presently arrayed as respondent No. 9) along with his brother Baljit Singh (arrayed as respondent No. 1) filed a suit for declaration to the effect that the sale of the house in question by their father Pritam Singh in favour of defendant No. 1, Varinder Singh vide a registered sale-deed dated October 8, 1980 is void and ineffective as against their rights. It was claimed by the aforesaid plaintiffs that the suit property was co-parcenary property and as such sale in question, which had been effected without any legal necessity, was not binding upon them. Permanent injunction was also sought against defendant No. 1 from recovering the rent from defendant Nos. 2 to 8.
3. The aforesaid suit was contested by defendant No. 1. He defended the sale as legal and valid and binding upon the plaintiffs. He claimed that he was also the son of Pritam Singh from his marriage with Kulwant Kaur, in the year 1941.
4. During the course of proceedings before the trial Court, issues were framed on May 14, 1985. The case was adjourned from time to time for the evidence of the plaintiffs. The same was fixed for August 8, 1986. However, on the request of the parties that the matter had been compromised, the same was taken up by the trial Judge on July 16, 1986. On the aforesaid date, the plaintiff No. 1 Jagjit Singh appeared for himself and as general attorney of his brother Baljit Singh and made a statement to the following effect :
"We have compromised in suit vide deed Ex. CX and in accordance with that deed, withdraw the suit."
5. Counsel for defendant No. 1 accepted the statement made by plaintiff No. 1. Accordingly, the trial Judge passed the following orders on the same date i.e. July 16, 1986 :
"16.7.1986
Present :- Counsel for the parties.
In view of the above statement the suit is hereby dismissed as withdrawn. Parties to bear their own costs. File be consigned to the record room.
RO & AC
Sd/-
Senior Sub Judge,
Patiala 16.7.86."
6. The said order dated July 16, 1986 was challenged by way of an appeal by Baljit Singh, plaintiff No. 2. It was claimed by Baljit Singh that the suit was filed by him and Jagjit Singh through his general attorney Jaswant Singh Jandu, who had engaged Shri B.L. Goel, as a counsel. Later on, Jagjit Singh, with a mala fide intention and acting fraudulently had withdrawn the suit on his own behalf and also on behalf of Baljit Singh. It was claimed by him that the action of Jagjit Singh in withdrawing the suit on behalf of Baljit Singh was wholly unauthorised and the order dated July 16, 1986 was liable to be set aside.
7. The said appeal was contested by defendant No. 1 Varinder Singh. An objection was taken with regard to the maintainability of the appeal. On merits also, it was maintained that the matter had been settled between the parties and as such on the aforesaid settlement, the suit had been rightly withdrawn by the plaintiffs.
8. The learned Appellate Court over-ruled the objections raised by defendant Varinder Singh and held that the order dated July 16, 1986 passed by the trial Judge was liable to be set aside. It was also held by the Appellate Court that as a matter of fact the said order was not a mere withdrawal of the suit but was an order passed on the basis of compromise and once it was shown that the compromise itself was vitiated, then the order itself was liable to be set aside. The learned Appellate Court also observed that as a matter of fact the said order passed by the trial Judge, amounted to disposal of the suit in terms of compromise and even a decree was required to be drawn. Consequently, the appeal filed by plaintiff Baljit Singh was allowed and after setting aside of the order dated July 16, 1986 passed by the trial Judge, the matter was remanded back to the trial Court for fresh decision. However, it was further observed that statement made by Jagjit Singh, plaintiff regarding withdrawal of the suit on compromise shall bind him and not Baljit Singh.
9. It is in these circumstances that Varinder Singh has approached this Court through the present appeal.
10. I have heard Shri D.S. Patwalia, the learned counsel appearing for the appellant and Shri M.L. Sarin, the learned senior counsel appearing for the plaintiff-respondent No. 1 and with their assistance have also gone through the record of the case.
11. Although many contentions have been raised by the learned counsel for defendant appellant Varinder Singh but primarily the maintainability of the appeal filed by Baljit Singh and consequential jurisdiction of the appellate Court have been questioned. The learned counsel has maintained that since the suit filed by the plaintiffs had been withdrawn by them by making a statement made by Jagjit Singh, plaintiff No. 1, for himself and as general attorney of his brother Baljit Singh, and on that basis, the suit had been dismissed as withdrawn, no appeal was maintainable even on behalf of plaintiff No. 2 Baljit Singh. According to the learned counsel, if plaintiff No. 2 had any grievance to make with regard to withdrawal of the suit by his brother Jagjit Singh, then only remedy available to him was to seek the review/recall of the aforesaid order by filing an application before the trial Judge itself.
12. On the other hand, Shri M.L. Sarin, the learned senior counsel appearing for the plaintiff-respondent No. 1 has supported the order passed by the Appellate Court. It has been vehemently contended by him that the appeal filed by Baljit Singh challenging the order dated July 16, 1986 was legally maintainable and, therefore, the appellate Court was well within its jurisdiction when it had set aside the aforesaid order dated July 16, 1986. Shri Sarin has argued that the order passed by the trial Judge on July 16, 1986 was based upon the statement made by Jagjit Singh in which Jagjit Singh had stated that they had compromised the suit with the defendants and, therefore, the suit was sought to be withdrawn. The learned counsel maintains that disposal of the suit as withdrawn on the statement made by plaintiff Jagjit Singh was in fact disposing of the suit on the basis of a compromise and once it was shown that the compromise was vitiated on account of non- compliance of the mandatory provisions or was otherwise the result of a fraud, the judgment based upon the said compromise was itself liable to be set aside and in such circumstances even an appeal was competent. To support the aforesaid arguments, Shri Sarin has relied upon the provisions of order xliii rule 1-a of the code of civil procedure and cited a judgment of the Apex Court reported as Banwari Lal v. Smt. Chando Devi, 1993(3) RRR 685 (SC) : 1993(1) Supreme Court Cases 581. Shri Sarin has also contended that the order passed by the appellate Court was based upon the principles of equity and fair play and substantial justice had been done by the appellate Court when the order dated July 16, 1986 passed by the trial Judge had been set aside and the matter had been remanded back, to protect the rights of the plaintiff Baljit Singh.
13. I have duly considered the rival contentions of the learned counsel for the parties. I have also gone through the judgment in Banwari Lal's case (supra) relied upon by Shri Sarin.
14. At the outset, the question which needs to be determined is as to whether the order dated July 16, 1986 passed by the trial Judge can be said to be a consent decree or a compromise decree or a judgment, whereby any compromise between the parties has been accepted or the said order is merely to be termed as an order permitting the withdrawal of the suit in terms of Order 23 rule 1 of the code of Civil Procedure ?
15. The statement made by plaintiff No. 1 on July 16, 1986 has been extracted above. Although in the said statement, Jagjit Singh had stated that the plaintiffs had compromised in suit vide deed Ex. CX but in fact the Court was not required to accept the terms of the said compromise, nor any seal of the Court was required thereupon. A simplicitor prayer was made by Jagjit Singh that the suit filed by the plaintiffs be permitted to be withdrawn. Acting upon the said statement made by plaintiff No. 1, the trial Judge passed the order dated July 16, 1986. The suit filed by the plaintiffs was ordered to be dismissed as withdrawn. No comments, whatsoever, were ordered by the trial Judge on the alleged compromise deed Ex. CX, nor on the stipulations contained therein with regard to the respective rights of the parties. In these circumstances, the order dated July 16, 1986 has to be treated an order simplicitor passed under order 23 rule 1 of the code of civil procedure, whereby a permission was granted to the plaintiffs to withdraw the suit. The said order in all respects has to be treated merely an order passed under Rule 1 and, in my considered opinion, cannot be termed to be an order under rule 3 of order 23 of the code of civil procedure, whereby a suit is required to be disposed of on compromise of the parties and for such disposal the satisfaction of the Court is required to the effect that the compromise had been legally entered between the parties. Whereas, under rule 3 of order 23, the Court is required to examine the validity of the compromise and record its satisfaction to that effect and also with regard to the satisfaction of the claims of the parties, no such satisfaction or adjudication is required while granting permission to withdraw the suit by the plaintiff. In contrast, where the plaintiff chooses to withdraw the suit on account of some technical/formal defect or on account of any other sufficient ground with a liberty to institute a fresh suit on the same cause of action, the Court is again required to record its satisfaction in terms of rule 1(3) of the order 23 of the code. Thus for the operation of Rule 1(1), when the plaintiff wishes to withdraw the suit simplicitor, no formal adjudication or satisfaction of the Court is required except that the Court may impose such costs upon him to satisfy the expenses of the defendant as it may deem fit and in such a situation, the plaintiff would be precluded from instituting any fresh suit in respect of such subject matter with regard to the same cause of action.
16. That being the position of law, it is apparent that when the plaintiff Jagjit Singh made a statement on his own behalf and on behalf of Baljit Singh (as claimed by him) without seeking any permission to file a fresh suit on the same cause of action and without requiring the Court to accept the terms of the compromise, the said prayer made by the plaintiffs was a simplicitor prayer for withdrawal of the suit. The order based upon such a prayer was not any adjudication of the respective rights of the parties by the Court, nor any formal decree was required to be drawn and was not even so drawn by the trial Court. The observations made by the Appellate Court to hold that the said order passed by the trial Judge was in fact a compromise judgment and was required to be followed by a decree, are to my mind not sustainable, either in law or on facts.
17. At this stage, the reliance placed by Shri Sarin, the learned senior counsel upon order xliii rule 1-a of the code may also be noticed. For ready reference, provisions of rule 1-a are extracted as below :
"1-A. Right to challenge non-appealable orders in appeal against decrees. - (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded."
Shri Sarin has relied upon sub-rule (2) of rule 1-a of the aforesaid rule to contend that when a decree was passed in a suit after recording compromise or refusing to record compromise, it is open to the appellant to contest the decree on the ground that the compromise should or should not, have been recorded. The learned senior counsel, thus, maintains that since the basis of the statement of plaintiff Jagjit Singh was an alleged compromise, which was wholly vitiated and never binding upon the rights of Baljit Singh, therefore, an appeal was maintainable on behalf of Baljit Singh against the order/judgment dated July 16, 1986. Besides the aforesaid provisions, as noticed earlier, the learned counsel has relied upon the judgment of the Apex Court in Banwari Lal's case (supra).
18. This argument of Shri Sarin cannot be accepted. The provisions of sub-rule (2) of rule 1-a specifically apply to an appeal being maintainable against a decree passed on the basis of a compromise or passed in the suit by refusing to record a compromise. In such a situation, it has been provided that the appellant would be at liberty to contest the decree on the ground that the compromise should, or should not have been recorded. However, as observed in the earlier portion of the judgment, the order dated July 16, 1986 cannot be held to be a compromise order/judgment or a decree. The said order is a simplicitor order permitting the plaintiffs to withdraw the suit. The provisions of rule 1-a as such are not applicable to the present case.
19. The reliance placed by the learned senior counsel on Banwari Lal's case is also not justified. In Banwari Lal's case (supra) on a statement made by the plaintiff, the trial Judge had passed the following order :
"Compromise deed Ex. C, tendered by plaintiff/Banwari Lal. Statement of the counsel for the plaintiff is also recorded to that effect. The Counsel for the plaintiff has stated that the suit of the plaintiff to be dismissed as withdrawn as per compromise deed Ex. C. The possession of the property has already been delivered to the defendant and defendant No. 2 Smt. Chando Devi is in possession of the disputed land as owner as per compromise deed Ex. C. Degree sheet be prepared accordingly."
The aforesaid order was taken into consideration by the Supreme Court and it was held that the compromise deed Ex. C tendered by plaintiff Banwari Lal and the statement made on that basis had been accepted by the trial. The trial Court had further directed that a decree sheet be prepared accordingly. In these circumstances, the Apex Court had observed that the aforesaid order of the trial Court could not be treated to be an order of withdrawal of the suit in terms of rule 1 of order 23 of the code but was on the face of it an order purporting to dismiss the suit of the plaintiff on the basis of terms and conditions mentioned in the petition of compromise. Consequently, it was held that the validity of the order had to be judged treating it to be an order deemed to have been passed in purported exercise of the power conferred on the court by Rule 3 Order 23 of the Code of Civil Procedure.
20. The facts in the present case are substantially different, as noticed above. Neither the Court has offered any comments on the compromise mentioned in the statement of plaintiff Jagjit Singh, nor the said compromise has been made a part of the order. No decree sheet has been ordered to be prepared on the basis of the compromise. Consequently, the judgment relied upon by the learned senior counsel is not applicable to the facts and circumstances of the present case.
21. As a result of the aforesaid discussion, it has to be held that the appeal filed by Baljit Singh before the Appellate Court, challenging the order dated July 16, 1986, was not legally maintainable and as a consequence thereof, the Appellate Court had no jurisdiction to set aside the aforesaid order and remand the case back to the trial Court for fresh decision. In these circumstances, the present appeal is allowed. The aforesaid order dated September 5, 1987 passed by the learned Additional District Judge, Patiala is set aside.
22. However, since the plaintiff respondent No. 1 Baljit Singh has contested the authority of Jagjit Singh to withdraw the suit on his behalf and has even claimed that no power of attorney in favour of Jagjit Singh was in existence on the date when he had made the statement on July 16, 1986, it would be open to Baljit Singh to seek his remedy before the trial Judge itself by filing an appropriate application, in accordance with law.
23. Since, Baljit Singh had filed the appeal against the order dated July 16, 1986 on August 26, 1986 itself and the matter has remained pending thereafter, earlier before the appellate Court and thereafter before this Court, it is now directed that if Baljit Singh chooses to file an application before the learned trial Judge within a period of 30 days from the date of receipt of the copy of this order, the said application shall be treated to have been filed within limitation.
24. It is further made clear that any observations made by this Court with regard to the authority of Jagjit Singh to act as attorney of Baljit Singh or otherwise and any observations made on the merits of the controversy shall not influence the trial Court in any manner, if any proceedings are initiated by Baljit Singh in this regard.
Appeal allowed.
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