ORDER
R. Banumathi, J.
1. This Revision Petition is directed against the rejection of unfiled I.A. No. -/96 in I.A. No. 145 of 1985 in O.S. No. 12 of 1984 on the file of Additional District Judge, Pondicherry at Karaikal.
2.Brief facts of the case are as follows:
2.1. The Plaintiff has filed the Suit in O.S. No. 12 of 1984 on the file of Additional District Judge, Pondicherry at Karaikal, for partition of her 3/4th share. Preliminary decree was passed on 28.2.1988. The Plaintiff has filed I.A. No. 145 of 1985 for passing a final decree in terms of the Preliminary Decree. A compromise memo was filed and decree was passed pursuant to the compromise memo. As per the compromise memo, instead of 71/2 feet entitled by the Defendant, the learned Counsel for the Plaintiff and Defendant endorsed that the Defendant was entitled to 9 feet width in the total length, for which a sum of Rs. 5000/- was assured to be paid as compensation. Rs. 3000/- was stated to be paid then and thereby leaving a balance amount of Rs. 2000/- which was agreed to be paid within sixty days and if not, with 12% interest.
2.2. Revision Petitioner/Plaintiff challenges the Compromise Decree contending that she did not consent to give 11/2 feet in the suit property nor agreed to receive any compensation as stipulated in the compromise memo and that the compromise is a fraud played upon the Court. According to her, only when the Commissioner came to divide the property, she learnt that only 21 feet would be allotted to her and not 221/2 feet in total and therefore, filed the application to set aside the compromise decree dated 2.5.1988. That application was rejected, which is impugned in this Revision Petition.
3. Referring to various decisions, the learned Counsel for the Revision Petitioner has submitted that when the Plaintiff has expressed grievance about the Joint Memo of Compromise, the Court ought to have enquired into the scope of authority of the Counsel for the Plaintiff. Assailing the impugned Order, the learned Counsel for the Petitioner vehemently contended that the lower Court ought to have numbered the application and decided the matter on merits. Submitting that the signature of the parties in the Joint Compromise memo and satisfaction of the Court is very much essential, the learned Counsel placed reliance upon number of decisions.
4. Countering the arguments, the learned Counsel for the Respondent has submitted that it is not open to the Plaintiff to challenge the compromise Decree nearly after eight years. It was further submitted that when the compromise is lawful, the Plaintiff cannot challenge the same and the alleged fraud has no basis.
5. I have carefully considered the submissions of the learned Counsel on either side.
6. The learned Counsel for the Revision Petitioner placed reliance upon the decision - Gurpreet Singh's case, - to contend that in the absence of compliance with the provisions contained in Order 23 Rule 3 CPC, Final Decree cannot be sustained. For proper appreciation of the contentions advanced, firstly, it is necessary to refer to the Law on the subject. In Gurpreet Singh's case, - , the Supreme Court has explained the object and purport of Order 23 Rule 3 CPC by laying emphasis on the words 'in writing and signed by the parties' to be necessitated in order to prevent false and frivolous pleas that the suit has been adjusted wholly or in part by any lawful Agreement or compromise, with a view to delay the proceedings in the suit.
7. Referring to the objects and reasons of Order 23, Rule 3 CPC, in Gurpreet Singh's case, - , the Supreme Court has held as under:
10. Under Rule 3 as it now stands, when a claim in suit has been adjusted wholly or in part by any lawful Agreement or compromise, the compromise must be in writing and signed by the parties and there must be a completed Agreement between them. To constitute an adjustment, the Agreement or compromise must itself be capable of being embodied in a Decree. When the parties enter into a compromise during the hearing of a suit or appeal, there is no reason why the requirement that the compromise should be reduced in writing in the form of an instrument signed by the parties should be dispensed with. The Court must therefore insist upon the parties to reduce the terms in writing.
11... It is for the Court to decide the question upon taking evidence or by affidavits as to whether there has in fact been such satisfaction of the claim and pass a Decree in accordance with Order XXIII, Rule 3 of the Code.
8. The main contention of the Revision Petitioner is that in the absence of signature of the Plaintiff in the joint Memo of Compromise, it is not in accordance with the provisions contained in Order 23 Rule 3 CPC and when the Plaintiff had complained that she did not give consent for compromise, the Court ought to have given an opportunity to agitate the matter. The learned Counsel for the Petitioner further submitted that the fact that the parties have filed the compromise during the hearing of the suit or Final Decree proceedings was not sufficient to do away with the requirement of the said rule and the Courts are expected to insist upon the signature of the parties and to reduce the terms into writing. Drawing the attention of the Court to the Memo of Compromise, the learned Counsel urged that the signature of the Plaintiff's counsel alone was not sufficient.
9. Adverting to the amendment in 1976 to Order 23 Rule 3 CPC and on an extensive review of the case law on the subject and the right of the counsel engaged to act on behalf of the client, in : AIR1991SC2234 , Byram Pestonji Gariwala v. Union Bank of India and Ors. the Supreme Court has held as follows:
22. Counsel's role in entering into a compromise has been traditionally understood to be confined to matters within the scope of the suit. However, a compromise Decree may incorporate not only matters falling within the subject matter of the suit, but also other matters which are collateral to it. The position before the amendment in 1976 was that, in respect of the former, the Decree was executable, but in respect of the latter, it was not executable, though admissible as judicial evidence of its contents.
30. There is no reason to assume that the legislature intended to curtail the implied authority of counsel, engaged in the thick of proceedings in Court, to compromise or agree on matters relating to the parties, even if such matters exceed the subject-matter of the suit. The relationship of counsel and his party or the recognized agent and his principal is a matter of contract; and with the freedom of contract generally, the legislature does not interfere except when warranted by public policy, and the legislative intent is expressly made manifest. There is no such declaration of policy or indication of intent in the present case. The legislature has not evinced any intention to change the well recognized and universally acclaimed common law tradition of an ever alert, independent and active Bar with freedom to manoeuvre with force and drive for quick action in a battle of wits typical of the adversarial system of oral hearing which is in sharp contrast to the inquisitorial traditions of the 'civil law' of France and other European and Latin American countries where written submissions have the price of place and oral arguments are considered relatively insignificant. [See Rene David, English Law and French Law - Tagore Law Lectures, 1980]. 'The Civil Law' is indeed equally efficacious and even older, but it is the product of a different tradition, culture and language; and there is indication whether the Parliament was addressing itself to the task of assimilating or incorporating the rules and practices of that system into our own system of judicial administration.
35. So long as the system of judicial administration in India continues unaltered, and so long as Parliament has not evinced an intention to change its basic character, there is no reason to assume that Parliament has, though not expressly, but impliedly reduced counsel's role or capacity to represent his clients as effectively as in the past. On a matter of such vital importance, it is most unlikely that Parliament would have resorted to implied legislative alteration of counsel's capacity or status or effectiveness. In this respect, the words of Lord Atkin in Sourendra comparing the Indian Advocate with the Advocate in England, Scotland and Ireland, are significant:
There are no local conditions which make it less desirable for the client to have the full benefit of an advocate's experience and Judgment. One reason, indeed, for refusing to imply such a power would be a lack of confidence in the integrity or Judgment of the Indian advocate. No such considerations have been or indeed could be advanced,and their Lordship s mention them but to dismiss them. [page 161].38. Consideing the traditionally recognized role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C.[Amendment] Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise Decree to comprehend even matters falling outside the subject-matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by itself duly authorized agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in Court by elimination of uncertainties and enlargement of the scope of compromise.
39. To insist upon the party himself personally signing the Agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorized representative. If a power-of-attorney holder can enter into an Agreement or compromise on behalf of his principal, so can counsel, possessed or the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognize such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly be stated.
10. Referring to the case laws on the subject, in : AIR2003SC4596 Jineshwardas by Lrs. and Ors. v. Jagrani and Anr., the Supreme Court has agreed with the above statement of Law and the Supreme Court has held that on compliance of Order 23. Rule 3 CPC, in terms of Order 3 Rule 1 CPC, the counsel can act onbehalf of the parties and held that it is not open to the appellant to contend to the contrary.
11. In Byram Pestonji Gariwala case : AIR1991SC2234 the Supreme Court has observed a note of caution that 'it will be prudent for the counsel not to act on implied authority except when warranted by the exigency of circumstances demanding immediate disposal of the suit by agreement of compromise and when signature of the party cannot be obtained without undue delay'.
12. It is thus well settled that the relationship of Counsel and his party are recognized as Agent and his Principal as a matter of contract. Coming to the facts of the case in hand, by perusal of the papers, it is seen that her counsel had acted prudently by necessary adjustments and the compliant expressed by the Plaintiff is baseless. We are not here for a moment to safeguard the interest of the counsel for the Plaintiff. All that we want to emphasize is that the grievance of the Plaintiff against her counsel has no substance.
13. In the Final Decree stage, on 02.05.1988, joint Memo of Compromise was filed containing the following clauses:
1. The Defendant is entitled to 71/2 feet in breadth from the Northern end of the property.
2. The Plaintiff has agreed to give an hand over an additional 11/2 feet in favour of the Defendant making the the share of the Defendant 9 feet from the northern end, to the entire length of the property West to East.
3. If the Defendant is constructing a wall he should do so within the nine feet and if the Plaintiff constructs a wall he will do so leaving the 9 feet share of the Defendant.
4. The Defendant shall pay Rs. 5,000/- in compensation in consideration to the Plaintiff for having given 11/2 feet of his property.
5. Of the compensation Rs. 3000/- is be paid forthwith and the balance of Rs. 2,000/- will be paid within 60 days. In default the balance of amount will fetch interest at 12% after the expiry of 60 days and the Decree will be executed for the recovery of the balance. Sd/- DefendantS/d-Counsel for the Petitioner/ Counsel for the Petitioner/Plaintiff Defendant2.5.19882. 5.1988// Entered before me and this shall formpart of the records//Sd/-Judicial Officer2.5.1988.
14. Grievance of the Plaintiff is that she has not signed in the joint Memo of Compromise and that she never consented for the compromise and she never agreed to give 11/2 feet of the width of the suit property to the Respondent/Defendant and that she did not agree to receive Rs. 3000 nor did she received the amount from the counsel. According to the Plaintiff, she is entitled to 3/4th of 30 feet of the suit property [221/2 feet] and only when the Commissioner came to the suit property, she came to know about the allotment of only 21 feet to her and the same is unjustified. On behalf of the Petitioner, it was contended that the then counsel has played fraud upon the Plaintiff and the Court has duty to inquire into that aspect and the Court ought to have numbered the application filed by the Plaintiff. In support of the contention that the Court has a duty in considering the question whether there had been a lawful Agreement or compromise, reliance was placed upon : AIR1993SC1139 Banwari lal v. Chando Devi. In the said case, considering the allegation that the compromise was not lawful, the Supreme Court has held as follows:
A party challenging a compromise can file a Petition under proviso to Rule 3 of Order 23, or an appeal under Section 96(1) of the Code, in which he can now question the validity of the compromise in view of Rule 1A of Order 43 of the code. If the Agreement or the compromise itself is fraudulent then it shall be deemed to be void within the meaning of the explanation to the proviso to Rule 3 and as such not lawful. In the instant case Plaintiff challenged the Order recording compromise on the ground his counsel in collusion with Defendant of the said suit had played a fraud on him by filing a fabricated Petition of compromise although no compromise had been effected between him and the Defendant. Further details of fraud were mentioned in the said Petition and it was stated that the alleged compromise itself was void, illegal and against the requirement of Order 23 Rule 3. Therefore, the entertaining of the application filed on behalf of Plaintiff and considering the question as to whether there had been a lawful Agreement or compromise on the basis of which the Court could have recorded such Agreement or compromise, by the trial Court was proper. Since the material produced on the record showed that the compromise was not lawful within the meaning of Rule 3,the Order recording compromise could be recalled.
15. Joint compromise memo was filed on 02.05.1988. Challenging the compromise Decree, the Plaintiff has filed Petition in 1996, after a period of eight years. By a careful perusal of the lower Court records, it is seen that the Plaintiff has been participating in all stages of proceedings. Though the lower Court has rejected the Petition I.A. No. 1996, it cannot be stated that the Court has not examined the grievance of the Plaintiff. Referring to the various materials on record, we would find that the lower Court was fully justified in rejecting the Petition.
16. For proper appreciation of the contentious points raised, certain dates are relevant, which are as under:
Preliminary Decree ... 28.02.1985In I.A. No. 14/85 Commissionerwas appointed on ... 25.09.1985Report filed stating thatproperty was indivisible ... 19.12.1985Plaintiff filed memo ofobjection ... 25.09.1986Both Plaintiff & Defendantfiled proposal for partition ... 09.12.1987& 21.12.1987[Respectively]Joint Memo of Compromise 02.05.1988Final Decree passed on ... 02.05.1988
17. It is thus seen from the above and the materials on record, that filing of joint Memo of Compromise was not an isolated act on the part of the Plaintiff's Advocate; but long drawn process of litigation in the Final Decree stage. The Commissioner has filed the report on 19.12.1985, expressing his opinion 'that the suit house could not be divided by metes and bounds by allotting 3/4th share to the Petitioner and the 1/4th share to the Respondent and further expressing his opinion that the suit house could be sold in public auction and the sale price may be divided according to the the shares of the parties'.
18. Both parties were not agreeable for selling the suit house in public auction. Both parties wanted to retain the property. It was thereafter, both the counsel for the Plaintiff and the Defendant have filed proposal for partition on 09.12.1987 and 21.12.1987 respectively. In the proposal filed by the Plaintiff's counsel it was suggested, 'the property is able to be partitioned if slight adjustments are made and it could be done by the Order passed by the Court'. It was thereafter on 02.05.1988, joint Memo of Compromise was filed, perhaps after talking over the matter. It is not as if the joint Memo of Compromise was filed on a single day. It was during the long drawn process after both parties filed proposal for partition in the process of the Final Decree proceedings.
19. According to the Plaintiff, she was not informed about the compromise nor was she a consenting party and she never agreed to give 11/2 feet of the width of the suit property to the Respondent and the alleged compromise was never part of her notice and she merely signed the E.P. and that even at that time, she was not informed about the details of the alleged compromise. That statement of the Plaintiff is demonstrably incorrect.
20. By perusal of the records, it is seen that after the passing of the Final Decree [pursuant to the joint Memo of Compromise], I.A. No. 244/1990 was filed by the Plaintiff under Or.39 R.1 CPC for temporary injunction restraining the Defendant from dismantling the existing superstructure in the suit property. In the supporting affidavit filed along with the Petition, the Petitioner has referred to the Final Decree. To the said application, Respondent has filed detailed counter statement referring to the allotment of 11/2 feet and that she has purchased additional 11/2 feet from the Plaintiff throughout its existence and that he is entitled to 9 feet. We may usefully refer to the averments of the counter filed by the Respondent/Defendant in I.A. No. 244/1990, which are as follows:
It is true that the Respondent was given 1/4 share and in addition 11/2 feet throughout the length of the house from the entrance till the back-door of the suit property. The width of the suit property is only 30 feet. This Respondent was given 71/2 feet on the extreme on the Northern end of the suit property and in addition to that he has purchased and additional 11/2 feet from the Plaintiff/Plaintiff throughout its extent. Therefore, the Respondent is entitled to 9 feet from the Northern end to the South of the house to his entire length till the backyard of the house. The remaining portion of 21 feet was allotted to the Petitioner/Plaintiff who has purchased 3 shares from the elder brothers of the Respondent.
The Respondent submits that the Petitioner/Plaintiff was allotted 21 feet situate south of the Respondent feet property.
That Petition - I.A. No. 244/1990 was dismissed on 05.02.1991 holding that the no suit is pending and for any new cause of action, the Petitioner has to file a fresh suit after paying Court fee.
21. Two things are relevant to be noted:
(i) the Petitioner was quite well aware of the allotment of 9 feet to the Respondent and that she is entitled only to 21 feet.
(ii) In the said proceedings in I.A. No. 244/1990, the Petitioner has engaged the same counsel Mr. S. Ameerudeen, who was engaged during the Final Decree proceedings.
19. It is to be noted that in the year 1990-1991, the Petitioner has not preferred any Petition challenging the compromise Decree and that she had no knowledge of the compromise Decree, under which she was allotted only 21 feet. Only in the year 1996, the Revision Petitioner has filed Petition to set aside the Final Decree on the ground that she was not a consenting party to the compromise.
20. The record of the proceedings made by the Court is sacrosanct and the parties cannot dispute the correctness of the Court proceedings on record. In : 1982CriLJ1581 State of Maharashtra v. Ramdas Shrinivas Nayak, the Supreme Court has held as under:
The Judges' record was conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. The Court could not launch into inquiry as to what transpired in the High Court.
The Court is bound to accept the statement of the Judges recorded in their Judgment, as to what transpired in Court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their Judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of facts as to what transpired at the hearing, recorded in the Judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a Judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there.
21. Again in Bhagwati Prasad v. Delhi State Mineral Development Corporation : (1990)ILLJ320SC the Supreme Court has held as under:
It is now settled law that the statement of facts recorded by a Court or quasi-judicial tribunal in its proceedings as regards the matter which transpired during the hearing before it would not be permitted to be assailed as incorrect unless steps are taken before the same forum. It may be open to a party to bring such statement to the notice of the Court/tribunal and to have it deleted or amended. It is not, therefore, open to the parties or the counsel to say that the proceedings recorded by the tribunal are incorrect.
22. As noted earlier, in the joint Memo of Compromise filed, the learned Judge has endorsed 'Executed before me and this shall form part of the office record'. When the joint Memo of Compromise has been duly executed before the Court, it is not open to the Petitioner to doubt the proceedings and contend that the Court has wrongly recorded the same, more so, nearly after a period of eight years after the joint Memo of Compromise was recorded. The explanation given by the Petitioner for not filing the Petition and that she was not aware of the terms of the Final Decree and that she merely signed in the papers at the execution stage is demonstrably incorrect and unacceptable. As noted earlier, the Plaintiff has been hotly contesting the matter by filing one application or another. Had there been no compromise giving away 11/2 feet to the Respondent, the Petitioner/Plaintiff would have raised objection then and there. Doubts arise regarding the filing of the application in 1996 that it might be for oblique purpose.
23. In E.P. No. 20/1992, the Respondent has filed the counter stating that he was allotted 9 feet on the northern portion and the Petitioner was allotted only 21 feet and that the Respondent was given 11/2 feet under separate arrangement. While referring to the allotment of 11/2 feet, the Respondent has not specifically referred to the compromise memo filed on 02.05.1988. Harping on the averments in the counter affidavit filed in E.P. No. 20/1992, the learned Counsel for the Petitioner has submitted that had there been really a compromise, the Respondent would have certainly referred to the joint Memo of Compromise and a vague reference to 11/2 feet allotted to the Respondent throws doubt on the compromise memo. This contention does not merit acceptance. Omission to specifically mention about the compromise is only because of the deficiency in the language employed in the counter. The joint Memo of Compromise recorded by the Court and passing of the Final Decree pursuant to the compromise is not a hidden one, but a matter of record.
24. Referring to 2001 (2) SCC 221 Chadha v. Triyugi Narayan Mishra and Ors. the learned Counsel for the Petitioner has contended that the counsel on record for the Plaintiff has betrayed the confidence of the client and the Court ought to have enquired into the matter and the Court erred in saying that if the Plaintiff is aggrieved, she could approach the Bar Council. This contention has no substance. In the said case before the Supreme Court, there was proved misconduct and purporting to act on behalf of the Respondent 'M', a compromise memo was filed and resultantly, the school run by 'M' was closed and the building was demolished. In the said context of proved misconduct, the Supreme Court has held that the appellant is guilty of misconduct and upheld the suspension of the appellant from practice for five years. The said decision has no bearing to the case on hand. As discussed earlier, all through the proceedings, the counsel Mr. Ameerudeen has been engaged, particularly even in the year 1990, while filing the application for temporary injunction in I.A. No. 244/1990.
25. Regarding the advocate not being authorised to enter into the compromise memo and the scope of the vakalatnama executed by the parties in favour of the advocate, the learned Counsel for the Petitioner has relied upon the following decisions:
: AIR1999SC1474 ;
: (2005)4SCC117 .
In the factual matrix of the case on hand, those decisions have no bearing.
26. Having regard to the factual aspects and in reference to the records, the Court below has rightly rejected the application filed by the Petitioner, filed nearly after a period of eight years. Having been a party to the joint Memo of Compromise, the Petitioner/Plaintiff cannot challenge the same raising doubts on the proceedings of the Court. This Revision Petition has no merits and is bound to fail.
27. In the result, the Revision Petition fails and the same is dismissed. No costs. Consequently, C.M.P. No. 9577/1996 is also dismissed.