- (1.) THIS is a defendant's appli cation for revision of the order passed in Civil Misc. Appeal No. 4 of 197"l by the District Judge, Hamirpur. The facts giving rise to this revision may be briefly stated as follows:-
(2.) THE plaintiffs opposite parties had filed a suit purporting to be under Sec. 77 of the Registration Act for a direction to the Sub-Registrar, Tehsil Charkhari, Hamir pur. to register a sale deed executed on 7-8- 1967 by Sripat, son of Ram Nath for a consideration of Rs. 2500.00 On 28th August, 1969, a compromise petition was filed being paper No. 25-ka-of the suit. It appears that this petition was filed by Sripat and Ayodhya Prasad who were duly identified by their counsel. It was also signed by the counsel for Viswanath, the plaintiff No. 1. On that date the Court did not pass any order on that application on the ground that there was no proper claim before it and it appear ed that there was some deficiency in Court-fees as well. On 6th September, 1969, the Court on the move made by the counsel for the plaintiff allowed the plaintiff to amend the plaint and pay the Court-fees. The plaintiff consequently moved an applica tion for the amendment of the plaint. That application was, however, not opposed and was therefore allowed. The plaint was ac cordingly amended and the defendant was granted time to file additional written statement. Subsequently by an order dated 13th January, 1970, the Court fixed 7th February, 1970 for verification of the compromise. On 27th January, 1970, the defendant filed an application stating inter alia, that he had not entered into any compromise and the alleged compromise dated 28th August, 1969 was obtained by practicing fraud on him and he was not prepared to verify the same. This application was ordered to be put up on 7th February, 1970 and the parties were directed to be ready with their evidence. On 7-2-1970, the statement of Sripat was record ed by the Court and he stated that paper No. 25-ka bore his signature but asserted that the plaintiffs had obtained his signature on that document representing that they were seeking adjournment of the case. The compromise petition as well as the objections were thereupon listed for hearing for 31st March, 1970, but the same could not be taken up on that date as the witnesses had not been served. Ultimately 3rd October, 1970 was fixed for the matter regarding re cording of the compromise. The order sheet of the Trial Court disclosed that on 3rd October, 1970, the parties did not adduce any evidence. The arguments were heard and the order recording the compromise was passed. A decree in terms of the compro mise was also passed by the trial Court. Aggrieved, the defendant preferred a mis cellaneous appeal which was dismissed. The defendant has now come up to this Court. The learned counsel for the ap plicant urged that having failed to investi gate the question as to whether the ap plicant had entered into the alleged com promise, the trial Court had no jurisdiction to record the compromise. He also urged that the alleged compromise was unlawful and should not have been recorded. The learned counsel for the opposite party, how ever, contended that Rule 3 of Order 23 of the Code of Civil Procedure did not pro vide any enquiry into disputed facts collate ral to the terms of the compromise and the party alleging fraud could not be allowed to avoid the compromise admittedly executed by him in a proceeding started by an ap plication under Order 23, Rule 3, Civil Pro cedure Code and that the only course open, to the defendant applicant was to proceed by a regular suit for the setting aside of the decree. In my view the first contention rais ed by the learned counsel for the applicant has force in it. Rule, 3, Order 23 of Civil Procedure Code requires a court to record a compromise if it is proved to the satisfac tion of the court that the suit has been adjusted wholly or in part by any lawful agreement or compromise. The Court must, therefore, find out where it is alleged that no compromise took place between the par ties as to whether a compromise had in fact been made. In the instant case an ap plication, 25-ka was filed containing the terms of the compromise and praying that the compromise be recorded and decree be passed in terms thereof. The averments made in that application were, however, de nied by the defendant in his objection dated 27-1-1970, 35-ga and the defendant stated in unequivocal terms that he had not made any compromise. He also stated that the alleged compromise dated 28-8-1969 was wrong and he was not prepared to verify the same. He had thus very clearly denied to have entered into a compromise with the plaintiffs. The very factum of the compro mise was seriously disputed. The defendant reiterated his stand when his statement was recorded by the Court on 7th February, 1970. He had also stated that the plaintiffs had obtained his signature on the alleged compromise on the pretext that they were applying for the adjournment of the case. No doubt the defendant had admitted that he had put his signature on the alleged com promise application but he insisted that no compromise had taken place between him and the plaintiffs and also denied the con tents of the said application on 28th Au gust, 1969. The trial Court, however, de cided to record the compromise on the ground that the signature of the defendant on the compromise application 25-ka having been admitted, the formal execution thereof was established. The appellate Court below also laid stress on the fact that the applica tion containing the compromise bore the signature of the defendant who was a liter ate person and if the defendant felt aggriev ed on account of any fraud having been played on him, he should have brought a regular suit for setting aside the decree pass ed on the alleged fraud. It clearly appears that the assumption which the Courts be low made is unsustainable, that assumption being that the defendant having admitted his signature on the document, 25-ka (com promise application) an inference of formal execution thereof should be made. In my opinion, from the facts narrated above no such inference could be drawn. The defen dant had merely admitted his signature on the said application, 25-ka. He had how ever, not admitted the contents of that ap plication.
(3.) ON the other hand he had speci fically denied the contents thereof in his objection, 35-ga. In these circumstances the mere admission of signature on the docu ment in question could not be treated as an admission of the contents thereof. As the defendant had denied to have entered into the compromise, the Court below had to give a finding as to whether there had or had not been a compromise between the parties and then also to decide if the com promise was lawful. It is only after the Court is satisfied that there had in fact been a compromise and further that the compro mise was a lawful one there would be no option left to the Court but to record it and pass a decree in terms thereof. But, whenever there is a dispute between the parties whether the compromise had really been arrived at or not, the Court must be fore proceeding to record the agreement or pass a decree in accordance therewith re quire to be satisfied that the compromise pleaded by any party had in fact been made. In the present case the trial Court instead of recording a clear finding as to whether at compromise had been made or not and if made was it a lawful one observed that the signature of the parties being admittedly on 25-ka-l, inference of the formal execution for the compromise should be made and therefore proceeded to record the compro mise. The Courts below have thus not gone into the merits of the allegations, hence the only course open to me is to set aside the impugned order and send back the case for retrial.;