IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 23-11-2017 CORAM THE HONOURABLE MR.JUSTICE M.GOVINDARAJ C.R.P.PD.No.1900 OF 2015 U.Prabhakara Rao ... Petitioner -vs-
1.U.Gandhi 2.U.Lakshmi Kumar 3.U.Nagalakshmi 4.L.Umashankar 5.L.Geetha Devi 6.L.Revathy 7.N.Das ... Respondents Petition against the order, dated 30.01.2015, passed in I.A.SR.No.892 of 2015 in O.S.No.309 of 2000, on the file of Principal District Munsif, Alandur.
For petitioner : Mr.K.S.V.Prasad For respondents 2 to 6 : Mr.M.Muthappan O R D E R Petitioner is the first plaintiff in the suit. According to him, he entrusted the matter to his nephews for coducting the case and, having reposing on them, signed papers given by them. He was under the impression that the other plaintiffs were conducting the suit effectively. But, to his dismay, the progress of the suit was not informed to him. When his son was transferred to Chennai, he verified the status of the suit through him. To his surprise, the counsel, who handled the case, informed his son that the suit had already been disposed of, on the basis of a compromise memo filed by the parties. According to the petitioner, he had no knowledge about the alleged compromise nor did he intend to enter into a compromise, much less he was aware of the terms of compromise. In spite of strenuous efforts, he could not get the terms of compromise as well as the order copy. The learned counsel, who appeared for him, also expressed his helplessness, as the bundle was returned to the parties, after the suit was disposed of on compromise. Aggrieved over the development and breach of trust, the petitioner filed an application in I.A.SR.No.892 of 2015 for setting aside the compromise decree, dated 09.02.2012, in O.S.No.309 of 2000 and to restore the suit on file. The said application has been rejected by the trial judge with an observation that the Court has become functus officio to entertain the application to restore the suit on file under Order 23 Rules (3) and (4) read with Section 151 of the Code of Civil Precedure. It is also observed that no prima facie case has been established to take the application on file. Aggrieved over the rejection of the application even before numbering the same, the petitioner is befoer this Court.
2. Learned counsel appearing for the petitioner would submit that the expression ''functus officio'' means, having fulfilled the function; having discharged the duty; having discharged the office or accomplished the purpose and, therefore, of no further force or authority. In so far as the present case is concerned, according to the learned counsel, this Court has not become functus officio, as there is no completed or lawful agreement between the aprties. According to the petitioner, he was not aware of the compromise and, therefore, the decree, based on the compromise memo, becomes voidable and it is for the Court, which has recorded the compromise, to look into and decide on the legality of the compromise memo.
3. The contention of the petitioner has some force. The Hon'ble Supreme Court, in Banwari Lal v. Chando Devi (through L.Rs.), CDJ 1992 SC 255, has held that the Court, which has entertained a petition of compromise, has to examine whether the compromise was void or voidable under the Indian Contract Act. Even Rule 1 (m) of Order 43 of the Code of Civil Procedure has been deleted, under which an appeal was maintainable against an order recording a compromise. As such, a party, challenging a compromise, can file a petion under proviso to Rule 3 of Order 23, on an appeal under Section 96 (1) of the Code, in which, he can question the validity of the compromise in view of Rule 1-A of Order 43 of the Code. The application for exercise of power under proviso to Rule 3 of Order 23 can be labeled under Section 151 of the Code, but when by the amending Act specifically such power has been vested in the Court before which the petition of compromise had been filed, the power in appropriate cases has to be exercised under the said proviso to Rule 3. The Court before which it is alleged by one of the parties to the alleged compromise that no such compromise had been entered between the parties that Court has to decide whether the agreement or compromise in question is lawful and not void or voidable under the Indian Contract Act. 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.
4. Under Rule 3 of Order 23 CPC, 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. In the instant case, the petitioner complains of signing the compromise memo itself. Whether there is a completed agreement and whether it will constitute a compromise for a decree being passed is under dispute. When such a dispute is raised, it is incumbent upon the Court, which passed the decree after recording the compromise, to look into it on merits, after giving notice to the parties concerned.
5. In the case on hand, the order impugned has been rejected at the threshold, without even numbering the application. As held by the Hon'ble Supreme Court in Banwari Lal's case, cited supra, until the completed and lawful agreement is entered into between the parties, the Court will not become functus officio and it has power under Order 23 Rule 3 of CPC to have a re-look into it and decide the matter to render complete justice. In such circumstances, the impuned order passed by the Court below is set aside. The trial Court is directed to number the application and decide the matter on merit, after issuing notice to all the parties concerned, within a period of three months from the date of receipt of a copy of this order.
6. Civil Revision Petition is allowed with the above direction. No costs.
Index : Yes/No 23-11-2017 Internet : Yes/No Speaking/Non-speaking dixit To Principal District Munsif, Alandur.
M.GOVINDARAJ,J.
dixit C.R.P.PD.No.1900 OF 2015 23-11-2017