1. This second appeal, arises out of the judgment and decree dated 10.05.2005, rendered by the learned Additional District Judge, Anupshahar, District Bulandshahar in Civil Appeal no. 2 of 2004 (Jageshwar Dayal and others Vs Rajjan Lal), which affirms the judgment and decree dated 04.12.2003, entered by the learned Civil Judge (Junior Division), Bulandshahar, in Original Suit no. 231 of 2001, Jageshwar Dayal and others Vs Rajjan Lal.
2. This second appeal is instituted by the plaintiffs in the Original Suit no. 231 of 2001, Jageshwar Dayal and others Vs Rajjan Lal.
3. The following genealogical table, depicts the respective positions of parties, to the litigation:
4. The plaintiffs-appellants brought civil action, against the defendant-respondent, by instituting a suit for declaration and injunction. The suit was registered as Original Suit No. 231 of 2001, Jageshwar Dayal and others Vs Rajjan Lal before the learned Civil Judge (Junior Division), Bulandshahar. The plaintiffs-appellants in the suit claimed to be true owners in possession of the property in dispute and sought a declaration to that effect. It was further prayed, that the defendant-respondent be injuncted, from interfering with the peaceful possession, of the plaintiffs-appellants, over the property in dispute. The third relief, sought by the plaintiffs-appellants, was to restrain the defendant-respondent, from alienating the disputed property in favour, of a third party.
5. Before the issues were framed, a written compromise, purportedly executed between the parties on 30.05.2001, was filed in the learned trial court. The defendant-respondent, by application 27Ga-2, denied the compromise.
6. The learned trial court vide order dated 24.09.2002 rejected the application 27Ga-2 of the defendant-respondent. The order dated 24.09.2002, found that the compromise is only a document in the record, and till the court passes appropriate orders, the compromise is ineffective and cannot be acted upon.
7. The trial court framed the following issues;
"(i) Whether the plaintiff is the owner of the entire property in dispute?
(ii) Whether the plaint was under valued and there was a deficiency in court fee?
(iii) Whether disputed property is a joint property of the parties in which all parties are entitled to an equal share?
(iv) Whether the plaintiff is entitled to any relief?
8. The issues were framed i.e. on 07.08.2003, and the issue no. 2 was decided, on date. By order dated 07.08.2003, the learned trial court, found that the valuation of the property in dispute was Rs. 10,000/-. The learned trial court, by the said order, directed the plaintiffs-appellants, to amend the valuation of the plaint and deposit the deficient court fee, within a period of one week. Additional time was granted by the court, since the defects were not rectified in time.
9. However, the plaintiffs-appellants did not carry out the necessary amendment, nor did they deposit the deficient court fee. On 28.10.2003, an application registered as Paper No. 34-A/1 was moved by the plaintiffs-appellants, for enlargement of time to cure the deficiencies.
10. The ordersheet of the learned trial court goes silent thereafter, on whether the amendment was carried out or not, and whether the plaintiffs-appellants had deposited the deficient court fees.
11. The original records, of the learned trial court, are before this Court. Learned counsel for both the parties perused the record. The learned counsels for both the parties, confirm that the plaintiffs-appellants did not carry out the amendment in the plaint, and failed to deposit the deficient court fees. No orders were passed on application marked as Paper No. 34A/1. These undisputed facts, lie at the core of the controversy, in this appeal.
12. An application, numbered as Application no. 35-A/2 was filed, by the defendant-respondent, before the learned trial court on 04.12.2003, to decree the suit, in light of the compromise agreement, dated 30.05.2001. The application, bears an endorsement of the counsel of the plaintiffs-appellants, seeking time to file an objection, to the said application.
13. The learned trial court decided the Application no. 35-A/2 and the suit on the foot of the compromise dated 30.05.2001 and entered a judgment and decree on 04.12.2003. The judgement dated 04.12.2003, passed by the learned trial court, records that a compromise agreement, was executed between the parties on 30.05.2001, and the same is in the record of the court. The learned trial court, in the judgement dated 04.12.2003, thereafter finds that "by the compromise agreement (Paper No. 22-A/1) the parties are ready to compromise". The judgement dated 04.12.2003, finally decreed the suit, in terms of the compromise deed and the compromise was made part of the decree. The judgment of the learned trial court did not consider the objection of the plaintiff-appellant to the application no. 35A-2, tendered by the defendant-respondent.
14. The plaintiffs-appellants carried in appeal, the judgment and decree, of the learned trial court dated 04.12.2003, before the learned Additional District Judge, Bulandshahar. The appeal was registered, as Appeal No. 2 of 2004, Jageshwar Dayal and others Vs Rajjan Lal. Various grounds, against the judgment and decree of the learned trial court, were stated in the memo of appeal. The grounds relevant at this stage, specifically emphasized the objection taken by the plaintiffs-appellants on 04.12.2003, and endorsed on the application no. 35-A/2, submitted by the defendant-respondent, to decree the suit in terms of the compromise. The omission of the trial court to consider the said objection, was also a ground in the memo of appeal.
15. The learned Appellate Court framed one issue for determination, "Whether the learned trial court while entering its judgment and decree dated 04.12.2003, over looked the material in the record, and misdirected itself in law, by passing an arbitrary order?"
16. The learned appellate court in its judgment dated 10.05.2005, found that the compromise dated 30.05.2001, was filed by both the parties in the court. The judgment of the learned appellate court, thereafter records, that no objection was tendered by the plaintiffs-appellants, in regard to the compromise. The only objection to the compromise came from the defendant-respondent which was rejected by the learned trial court.
17. The learned appellate court thus concurred with the learned trial court, that no objection had been tendered by the plaintiffs-appellants to the compromise. In its narration of facts, though, the appellate court noticed the objection made by the plaintiffs-appellants before the trial court seeking time to enter its opposition, to the application No. 35-A submitted by the defendant-respondent. However, no finding in that regard was returned by the learned appellate court. The appellate court was in agreement, with the trial court, to decree the suit on the foot of the compromise.
18. The appellate court in its judgment dated 10.05.2005, also dealt with the issue, regarding deficiency in payment of court fees, and failure of the plaintiffs-appellants, to make the amendments to the plaint. The appellate court judgment, held that in view of the compromise between the parties, issue of deficiency in court fee was irrelevant.
19. In this manner, the learned appellate court, as well as the learned trial court, abstained from deciding the objection of plaintiffs-appellants to the compromise. The learned courts also opined that deficiency in court fees and failure to amend the plaint on merits, had lost relevance, in light of the compromise between the parties.
20. In the wake of such findings, the appeal filed by the plaintiffs-appellants, came to be dismissed and the judgment & decree of the learned trial court was affirmed, by the learned appellate court, in its judgment and decree dated 10.05.2005.
21. Sri B. Dayal, learned counsel for the appellants, submits that the judgments and decrees of the learned trial court, as well as learned appellate court, respectively decreeing the suit in terms of the compromise, was in the teeth of Section 6(2) of the Court Fees Act, 1870. The judgments of both the learned courts, are in excess of jurisdiction. The courts could not enter into the consideration of the compromise, in the face of admitted deficiency in the court fee.
22. Learned counsel for the plaintiffs-appellants, further submits, that the impugned judgements, completely over looked the objection by the plaintiffs-appellants to the application, filed by the defendant-respondent, to decree the suit, in terms of the compromise. The judgments & decrees impugned are in violation of Order XXIII Rule 3 CPC.
23. In opposition, Mrs. Rajni Ojha, learned counsel for the defendant-respondent, submits that the appeal before the learned appellate court, as well as the instant second appeal, are not maintainable in view of the bar in Section 96(3) CPC. Elaborating her submissions, she contends, that findings of fact, had been returned by the learned courts of earlier instance, that the compromise was duly arrived at, and hence the bar in Section 96 (3) CPC read with Order XXIII Rule 3 CPC, will apply in full force to the facts of this case. Secondly, the issue of court fees ceases to be relevant, after the parties arrived at a compromise.
24. The parties agreed during the arguments, that following substantial questions of law arise for determination in this second appeal.
(i) Whether the learned appellate court and the learned trial court erred in law by proceeding with the suit and decreeing it in terms of the compromise, even in the admitted presence of deficiency of court fees, and lack of incorporation of amendment to the plaint in regard to valuation of the suit?
(ii) Whether the judgment of the learned trial court as well as learned appellate court are rendered perverse and illegal, on account of omission on the part of the learned both courts, to return independent findings on the objection endorsed by the plaintiffs-appellants on the application no. 35A filed by the defendant-respondent?.
(iii) Whether the learned appellate court erred in law by affirming the judgment of the learned trial court, without finding the compliance of Order XXIII Rule 3 C.P.C.?
(iv) Whether the appeals before the learned first appellate court as well as this Court are maintainable?
25. The levy of court fee, is governed and regulated by the Court Fees Act, 1870 (hereinafter referred to as "Act of 1870"). The Act of 1870 is a complete code. The consequences of short payment of court fee, and failure to rectify the defect by making good the deficiency in court fee, are provided in Section 6(2) of Court Fees Act, 1870. The provision bears relevance to the instant controversy, and it would be apposite to extract the same before proceeding further;
"6. Fees on documents filed, etc in Mufassil Courts or in Public Offices-(1)........
(2) Notwithstanding the provisions of sub-section (1), a Court, may receive plaint or memorandum of appeal in respect of which an insufficient fee has been paid, but no such plaint or memorandum of appeal shall be acted upon unless the plaintiff or the appellant, as the case may be, makes good the deficiency in court-fee within such time as may from time to time be fixed by the Court."
26. Answers to two of the substantial questions of law, framed herein above, will turn largely, on the interpretation, of the above said provision.
27. A perusal of Section 6(2) of the Act of 1870, discloses that even on insufficient payment of fee, the court may receive a plaint or a memorandum of appeal. The second part of Section 6(2), creates an embargo on further action, to be taken on a plaint or memorandum of appeal, which is deficient in court fee. However the disability imposed is not permanent, and shall stand removed, once the plaintiff or the appellant, as the case may, be makes good the deficiency in court fee, within the time fixed by the court. The defect is curable and can be rectified by payment of court fee in full.
28. Section 6(2) of the Act of 1870 and in particular the phrase therein "shall be acted upon" fell for consideration, on more than one occasion, before this Court.
29. The consequences of the deficiency in payment of court fee, on the suit action, were determined by this Court in Mt. Asghari Begum Vs Fasihuddin reported at AIR 1934 Allahabad 989, wherein it was ruled:
"There would be no proper suit before the Court till the deficiency in court-fee had been paid. The only order that could be passed by the learned Subordinate Judge was one rejecting the plaint. No order permitting the plaintiff to withdraw the suit and to bring a fresh suit could have been made on the basis of an insufficiently stamped plaint, which was liable to be rejected. In this view of the case, the plaintiff has paid what was due by her, and she is not entitled to get back the money. The application in revision is accordingly dismissed with costs."
30. In Pradeep Kumar and another Vs Vishnu Kumar and others, reported at 2018 All. C.J. 2560, this Court, interpreted the expression "no such plaint or memorandum of appeal shall be acted upon" as occurring in Section 6(2) of the Court Fees Act, 1870. This Court in Pradeep Kumar (supra) held:
"In so far as sub-section (3) of section 6 is concerned, it restricts the right of the court to proceed further with the suit or appeal, if a question of deficiency in court-fee in respect of any plaint or memorandum of appeal has been raised by an officer mentioned in Section 24-A. Proceeding further in a suit or an appeal would mean proceeding further on the claim made in the suit or in the appeal or on the applications seeking interim relief to serve that claim. It does not take away the right of the plaintiff to abandon any part of his claim. When a plaintiff abandons part of his claim, he does not proceed further with his claim made in the suit. The process /act of abandonment of a part of the claim made in a suit does not amount to proceeding further in the suit."
31. The consequences of deficiency of court fees and the scope of expression "proceeding with the suit" in Section 6(3) of the Court Fees Act, 1870 were also considered in Hamid Hussain Khan Vs Masood Hussain Khan and others reported at AIR (39) 1952 Allahabad 279. The determination of this Court of the aforesaid legal question is as follows;
"29. Under Section 6(3) Court-fees Act, as amended in U. P. when a question of deficiency in court-fee is raised by the Inspector of Stamps, the Court is directed, before proceeding further with the suit or appeal, to record a finding whether the court fee paid is sufficient or not. If the Court finds that the court-fee paid is insufficient, it shall call upon the plaintiff to make good the deficiency within such time as it may fix and in case of default shall reject the plaint; provided that the Court may, for sufficient reasons to be recorded proceed with the suit, if the plaintiff gives security to the satisfaction of the Court for payment of the deficiency in court-fee within such further time as the Court may allow.
30. As stated above, the Court does not appear to have decided the question of court-fee before proceeding with the receivership application. The question is whether proceeding with the receivership application amounts to "proceeding with the suit" I thick that it does. A application for the appointment of a receiver is made in the suit and is part of the proceedings of the suit. It is true that it does not raise a question upon the merits of the suit itself but it is certainly an interim matter connected with the suit. The words 'proceeding with the suit', as mentioned in Section 6(a) must be read in the context of Section 28 Court fees Act which provides that no document shall be of any validity unless and until it is properly stamped. If the plaint is not properly stamped, the Court ought not to take any action upon it so as to give relief to the plaintiff by way of an interim injunction or an order of appointment of a receiver, or otherwise.
31. The fact that the defendant's application in revision against the order of the lower Court directing the hearing of the receivership application before the issue of court-fee was decided was dismissed by this Court does not debar this Court from considering in this appeal the question whether in the circumstances the Courts below bad jurisdiction to proceed with the hearing of the receivership application. The reason is that the revision was dismissed not on the merits, but on a preliminary point that the revision was not maintainable."
32. The preceding findings of facts, the case law in point, and the bare words of the statute, will enable us to distill the import of Section 6(2) of the Act of 1870, and its impact on this case.
33. The words "no plaint or memorandum of appeal shall be acted upon" essentially places a jurisdictional fetter on the court. Jurisdiction, is the authority conferred by law upon a court, to try a lis. Before proceeding to try any lis, or pronouncing any judgment on the claim or part thereof, courts have to see that all jurisdictional pre-requisites, are satisfied.
34. A court can enter into the merits of a controversy, and/or proceed with any aspect of the claim, only after full court fee as determined by the court, is paid. The suit proceedings become dormant, when deficiency in court fee is found. But the jurisdiction of the court to process the claim revives, once the deficiency is removed. Failure to remove the deficiency after opportunity, may entail dismissal of the suit. In any case, the adjudication of the claim or part thereof, which is subject of the suit, cannot be proceeded with, in the wake of deficient court fee.
35. The plaintiff had not amended the plaint, and there was deficiency in payment of court fee, despite orders of the trial court.
36. In these facts, the learned trial court as well as the learned appellate court, did not have the jurisdiction, to enter into an exercise under Order XXIII Rule 3 CPC, return any findings in regard to the compromise, and pass a judgment and decree on the foot of such compromise. The learned trial court as well as learned appellate court, exceeded their jurisdiction, and acted contrary to a statutory embargo created by Section 6(2) of the Court Fee Act, by acting upon the compromise dated 30.05.2001, and entering their respective judgments and decrees, on the foot thereof, in the face of admitted deficiency in payment of court fee and failure of the plaintiff-appellant to amend the plaint.
37. The first question of law is accordingly answered as follows:
"The learned appellate court and the learned trial court erred in law by proceeding with the suit and decreeing it in terms of the compromise, even in the admitted presence of deficiency of court fees, and lack of incorporation of amendment to the plaint in regard to valuation of the suit".
38. Compromise, between the parties to a lis, is an act of litigative repose, which terminates the litigation. Compromise is an act of which parties to a lis, to settle the dispute on acceptable terms with mutual consent . Legislature has accorded sanctity, to act of the parties to settle their dispute, by compromise agreements. The procedure for effecting a valid compromise, provided in Order XXIII Rule 3 CPC, is summary in detail but substantive in content.
39. Order XXIII Rule 3 CPC. is reproduced here under, for ready reference:
3. Compromise of suit - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction in the same as the subject-matter of the suit:] [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [ Explanation-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;]
40. Compromise not only brings the parties to a litigative terminus, but also bars further litigation, by prohibiting any appeal against a compromise decree. The parties are barred from agitating the matter any further, after the compromise decree is passed. The parties cannot be rushed into a compromise. The essence of a compromise, is in a voluntary agreement, between the parties, to settle the matter by mutual consent. The procedure prescribed under Order XXIII Rule 3 CPC, rules out all elements of fraud, misrepresentation, coercion and anything which makes a compromise non voluntary.
41. Hence, there has to be strict compliance of the procedure prescribed in Order XXIII Rule 3 CPC. The provision is mandatory, and has to be scrupulously adhered to. The satisfaction of the Court, should be duly recorded, in regard to the willingness of the parties to compromise the suit, and lawful nature of the agreement. The identities of the parties, either in person, or through their counsel as well as their signatures should be fully established before the court with full material particulars. Satisfaction of these conditions precedent to a valid compromise should be reflected in clear findings of the court.
42. In the instant case, the findings of the trial court and the appellate court, on the identities of parties, identification of signatures and the respective counsels, lack material particulars and are vague.
43. The learned trial court as well as learned appellate court under the judgments dated 10.05.2005 and 04.12.2003 respectively, have not recorded their satisfaction on the basis of the material in the record, in regard to the willingness of the parties to the compromise and the lawful nature of the agreement.
44. The mandate of Order XXIII Rule 3 CPC, as stated in the preceding paragraphs, was not observed by the learned trial court, as well as the first appellate court. The compromise decree was passed by the trial court in violation of the provisions of Order XXIII Rule 3 CPC.
45. This requirement assumes greater importance, in this case, in view of some peculiar facts. The plaintiffs-appellants had endorsed an objection to the compromise on the application, filed by the defendant-respondent, dated 04.12.2003, registered as Paper No. 35A-2. The learned trial court took no account of the aforesaid objection. The learned trial court did not return a finding on the said objection made by the plaintiff-appellant. This omission by the learned trial court was a ground in the memo of appeal before the first appellate court. The learned appellate court, noticed the objection of the plaintiffs-appellants, to the compromise, but neglected to make a finding on the same.
46. True it is, that the plaintiffs-appellants had on earlier occasion, affirmed the compromise, in response to the application dated 04.07.2001 by the defendant-respondent, denying the compromise. On different occasions, both parties had reversed their stands on the compromise before the trial court. In such situation, it was imperative to determine the nature of the objection. The judgments assailed in this second appeal have been rendered in violation of Order XXIII Rule 3 CPC.
47. The findings of the learned trial court, and the learned appellate court, that the appellant did not object to the compromise are perverse and contrary to the record.
The second and third questions of law are accordingly answered as follows;
(2) The judgment of learned appellate court was rendered perverse and illegal, by its agreement with the learned trial court that the plaintiffs-appellants had no objection to the compromise, since it overlooked the admitted fact in the record, that the plaintiffs-appellants had endorsed an objection to the application 35-A, before the learned trial court and duly reiterated the same in the memo of appeal.
(3) The learned appellate court erred in law, by affirming the judgment and decree of the learned trial court, which was passed in violation of Order XXIII Rule 3 CPC.
48. The legislature has vested sanctity in a mutual settlement by according finality to a compromise agreement. Of course the compromise has to be entered into lawfully before a court of law. The Courts acknowledge, the quietus to the controversy, brought about by such compromise. Appeals, against a judgment and decree, passed on the foot of a compromise are barred. Section 96(3) of CPC prohibits any appeal, against a decree passed on a compromise, between the parties. The intent of the legislature is not far to seek. Creating successive avenues of appeal, against a judgment and decree passed on the foot of a compromise, would defeat the purpose of settlement by compromise. Successive avenues of appeal, would draw the parties, into an endless orbit of litigation, which they seek to end by the compromise.
49. Considering the issue of maintainability of an appeal and a second appeal, arising out of a judgment and decree passed on a compromise the Hon'ble Punjab & Haryana High Court in Harmndeep Singh Vs Swaran Singh reported at 2009 Law Suit (P&H) 640, answered the aforesaid question as under:
"24. The judgment and decree passed by the learned lower appellate Court was on the basis of compromise, which is again not appealable. The prerequisite for permitting the assignee to file an appeal in this Court, the judgment/decree should be appealable to the High Court. Once it is proved, that the decree is not appealable, the application or the appeal filed by the applicant-appellant cannot be entertained."
50. The argument of Smt. Rajini Ojha, learned counsel for the respondent regarding non maintainability of the appeals, before the first appellate court as well as this Court, seems attractive at first sight, and settled both by statute and authority. However, in light of the established facts of this case and legal narrative rendered in the earlier part of the judgment, the arguments do not stand up to judicial scrutiny.
51. Admittedly, there is a legislative bar, against taking a judgment and decree, passed on the foot of a compromise, in appeal. Such bar is however, is premissed on two facts. Firstly, the trial court, had the jurisdiction to render the judgment and decree on the foot of a compromise. Secondly such judgment and decree had been rendered in strict adherence to the provisions of Order XXIII Rule 3 CPC. In case, the trial court was not vested with the jurisdiction, to enter a judgment on the foot of a compromise, the bar of Section 96(3) CPC will not apply. There can be no two ways about it. In the event, any other interpretation is adopted, an absurdity would be a sure consequence. In that case, a judgment passed by a court, without jurisdiction, would become final. The aggrieved party, would not have any legal recourse, even against a judgment, which was beyond the jurisdiction of the court. Consent of parties cannot confer jurisdiction on courts.
52. It has already been found, in the earlier part of the judgment, that the learned trial court had exceeded its jurisdiction and its judgment violated Order XXIII Rule 3 C.P.C. The appeal before the first appellate court, was maintainable to determine among other issues, the issue of excess of jurisdiction and compliance of Order XXIII Rule 3 C.P.C. The instant second appeal is maintainable on like grounds.
53. Smt. Rajini Ojha, learned counsel for the respondents has relied upon various judgments, relating to estoppels created against the parties, on account of compromise, and a consent decree passed on the basis thereof. However, the judgments are not applicable, to the facts of the instant case, in view of the findings the preceding part of this judgement.
54. The second question of law is answered as follows;
"The appeal before the first appellate court as well as the second appeal before this court are maintainable, since the trial court acted in violation of Order XXIII rule 3 CPC did not have the jurisdiction to pass the judgment and decree assailed before the first appellate court and this Court."
55. The judgment and decree dated 04.12.2003, passed by the learned Civil Judge (Junior Division), Bulandshahar, in Original Suit no. 231 of 2001, Jageshwar Dayal and others Vs Rajjan Lal, and the judgment and decree dated 10.05.2005, passed by Additional District Judge, Anupshahar, District Bulandshahar in Civil Appeal no. 2 of 2004 (Jageshwar Dayal and others Vs Rajjan Lal), are illegal and unsustainable.
56. The judgment and decree dated 04.12.2003, passed by the learned Civil Judge (Junior Division), Bulandshahar, in Original Suit no. 231 of 2001, Jageshwar Dayal and others Vs Rajjan Lal, and the judgment and decree dated 10.05.2005, passed by Additional District Judge, Anupshahar, District Bulandshahar in Civil Appeal no. 2 of 2004 (Jageshwar Dayal and others Vs Rajjan Lal), are set aside.
57. The matter is remitted to the learned trial court.
58. The suit proceedings commence forthwith before the learned trial court upon receipt of a certified copy of this order. The learned trial court shall grant one month and no more time to the plaintiffs-appellants to amend the plaint and make good the deficiency in the court fee. The learned trial court shall decide the suit within a period of six months thereafter. The learned trial court shall proceed on day to day basis, if necessary to adhere to the stipulated time line. The learned trial court shall not grant any adjournment to the parties. The learned trial court shall finally decide the suit, in accordance with law and consistent with the observations made in this judgment.
59. In case an appeal is filed against the judgment & decree of the trial court, the appellate court shall decide the appeal within two months.
60. Second appeal is allowed to the extent indicated above.
Order Date :- 30.08.2019 Pravin