JUDGMENT
Mukul Mudgal, J.
1. This review application seeks review and/or recall of order dated 17th May, 2000 passed by this Court. The original plaint filed by the Plaintiff Archies Greetings & Gifts Limited prayed for a perpetual injunction restraining the defendants, Garg Plastic from manufacturing, selling or otherwise dealing in photo frames and wall clocks and similar other reliefs on the ground of violation of infringement of the registered Trade Mark ‘Archies’ and for other ancillary reliefs. For the purpose of this review petition, it is not necessary to go into the merits of the matter. However, by an order dated 17th May, 2000, this Court disposed of the suit by passing the following order:
“S. No. 2611/99
The learned counsel for the defendant states that the defendant will exhaust the existing goods said to be infringing the plaintiff’s trademark within two months from today. The learned counsel for both the parties agree that a decree be passed in terms of the prayers made in Para 22(a) to 22(c) of the suit.
In this view of the matter, the decree is passed in the above terms subject to the above observation about the disposal of the pending stocks for a period of two months from today. Parties are left to bear their own costs.
The suit and all the pending applications are accordingly disposed of.
The case need not be listed on 10.8.2000, the date already fixed.”
2. It is this order dated 17th May, 2000 which is sought to be reviewed/recalled by the present application on the following pleas:-
(a) The defendant adopted a trade mark ‘Archies’ for photo frames and wall clocks .
(b) The Archies Greetings & Gifts Limited, the plaintiff, filed the present suit and an application under Order 39 Rules 1 and 2 C.P.C. seeking temporary injunction.
(c) The defendant had engaged Shri Praveen Anand to defend the suit on its behalf and various defenses were explained to the said counsel for being raised before this Court. Time to obtain written statement was taken by the counsel and on 6th January, 2000, the defendant’s then counsel addressed a letter to the counsel for the plaintiff enclosing a draft application under Order 23 Rule 3 CPC where inter-alia the area of business of the defendant was sought to be restricted to wall clocks and photo frames and the defendant sought to undertake not to manufacture/sell any other item.
(d) Since the matter was not being settled, the defendant informed its counsel to prepare and file written statement and reply and was assumed that this would be done. The matter was then listed on 28th February, 2000 when the defendant’s counsel informed the defendant that the matter had been adjourned to 10th August, 2000 and the counsel may be contacted in May or June so that written statement may be prepared and filed.
(e) To the shock of the defendant on 18-5-2000, Shri Sai Krishna Advocate who appeared for the defendant informed the defendant that it should stop manufacturing goods under the trade mark ‘Archies’ as this Court had ordered the defendant to do so and on receiving no satisfactory reply from his erstwhile counsel, another counsel was engaged on 19th May, 2000 who inspected the file on 23rd May, 2000 and found that the right of the defendant was totally surrendered by the earlier counsel, by a statement which was made without prior and proper consultation and authorization from the defendant. It was also submitted that while the compromise application was drafted and exchanged both the parties had not put their signatures which indicated clearly that compromise talks had failed.
3. The present review petition is filed to set aside the order dated 17th May, 2000 and the main plea raised is the non-compliance of provisions of Order 23 Rule 3 CPC and the stand taken by the defendant is that as per the position of law laid down by the Hon’ble Supreme Court in Gurpreet Singh v. Chatur Bhuj Goel, , the application under Order 23 Rule 3 must be signed by both the parties and the following observation of the Hon’ble Supreme Court in paragraph 10 of the above judgment is relied upon:
“Under R 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 into writing.”
4. Reliance has also been placed by the counsel for the review petitioner on the judgment of the Hon’ble Supreme Court in Banwari Lal vs. Chando Devi, which while applying the law laid down in Gurpreet Singh’s case (supra) held as follows:-
“10. The learned counsel appearing for the respondent took a stand that the High Court was justified in taking the view that the suit had been simply withdrawn by the plaintiff-appellant under R. 1 of O. 23 and it had not been compromised in terms of R. 3 of the said O. 23; as such there was no occasion for the appellant to file an application for recall of the said order and for restoration of the suit in question for being heard on merit. From the copy of the petition which was filed on 27-2-1991 it appears that the terms and conditions of settlement and agreement had been mentioned saying that both parties had entered into a compromise because of which plaintiff-appellant had thereafter no connection with the disputed land and defendant-respondent shall be deemed to be in possession and the owner of the said disputed land. The prayer made in the said petition also says that the compromise may be ordered to be accepted. On basis of that petition, as already mentioned above, the Court passed an order saying that the compromise had been accepted. In the order it has been mentioned that the suit of the plaintiff be ‘dismissed as per compromise deed Ex.C’.
In view of the aforesaid facts and circumstances, it is difficult to hold that by order dated 27.2.1991 the Court allowed the suit to be withdrawn in terms of R.1 of O. 23. The order on face of it purported to dismiss the suit of the plaintiff on basis of the terms and conditions mentioned in the petition of compromise. As such, the validity of that order has 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 R. 3 of O. 23 of the Code. The learned Subordinate Judge should not have accepted the said petition of compromise even it had no knowledge of the fraud alleged to have been practiced on the appellant by his counsel, because admittedly the petition of compromise had not been signed either by the respondent or his counsel. This fact should have been discovered by the Court. In the case of Gurpreet Singh v. Chatur Bhuj Goel, , it has been said (para 10):-
“Under R. 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 into writing.
The requirement of the petition of compromise being signed by the parties concerned has been considered also in the case of Byram Pestonji Gariwala v. Union Bank of India, , it appears the attention of learned Judges was not drawn to the aforesaid case of this court in Gurpreet Singh v. Chatur Bhuzj Goel (supra).”
The counsel for the defendant/review petitioner thus contended that the effect of Byram Pestonji’s case (supra) had been explained by this judgment of the Hon’ble Supreme Court. It is also contended that it was noticed in the above judgment that in Byram Pestonji Goriwala vs. Union Bank of India, , the attention of the court was not drawn to the judgment in Gurpreet Singh’s case (supra). Reliance has also been placed by the learned counsel for the defendant/ review petitioner on the following other judgments which have taken a view similar to Gurpreet Singh’s case :
a) , Smt. Kamla Devi and another vs. Prabhat Chand and another.
b) , Bhai Swinder Singh vs. Ram Kishore and Anr.
c) , Lokumal Topan Dass and another vs. Allahabad Bank and others.
d) 75 (1998) DLT 438, Padam Chand Jain vs. Hukum Chand Jain.
5. It is submitted by the counsel for the respondent that the authority of the counsel to make a statement on 17th May, 2000 has been exercised in a manner contrary even to the terms indicated in the draft application for settlement which preserved the rights of the defendant to manufacture wall clocks and photo frames. Consequently, the suit was never compromised by the defendant and the order dated 17th May, 2000 being contrary to the Order 23 Rule 3 CPC deserved to be set aside.
6. Notice was issued on the review petition and the plea raised in the reply to the review petition by the plaintiff were inter-alia as under:
(a) That the plea that the counsel had acted without instruction is an after thought, and
(b) the written statement and reply to the application under Order 39 Rules 1 and 2 was not filed in view of the talks for compromise between the parties. Reliance has been particularly placed on the order of this Court dated 8th February, 2000 which reads as under:
“S.2611/99
Learned counsel for the defendant states that an offer for continuance of the impugned mark for a limited period had been sought so as to progressively dis-continue the use of the impugned mark.
Learned counsel for the plaintiff states that a time of six months was sought in December, 1999 and he has no objection to a further period of three months being granted for this purpose effective from today.
List the matter on 24th February, 2000.”
7. In view of the above order the learned counsel for the plaintiff further contended that it was evident that the settlement was being arrived at which fact the defendant was fully aware of and a preponement of date was done by the counsel for defendant with the defendant’s counsel. The conduct of the defendant is termed as not bonafide and change of counsel has been effected to enable the defendant to wriggle out of a lawful settlement arrived at between the parties.
8. On the other hand it is contended by the counsel for the respondent/ plaintiff that even if it was assumed that the above two judgments relied upon by the petitioner supported the plea of the review petitioner, nevertheless these were judgments of 2 Hon’ble Judges and the issue has been authoritatively settled by a judgment of the 3 judges of the Hon’ble Supreme Court in D.P. Chadha Vs T.N. Mishra & Ors. JT 200 (Supp. 3) SC 505 case and in particular reliance has been placed on the following passage in D.P. Chadha’s judgment to contend that the issue is settled and no longer open to debate.
“17. Byram Pestonji Gariwala Vs Union of India & Ors. is an authority for the proposition that in spite of the 1976 Amendment in Order 23 Rule 3 of the CPC which requires agreement or compromise between the parties to be in writing and signed by the parties, the implied authority of Counsel engaged in the thick of the proceedings in court, to compromise or agree on matters relating to the parties, was not taken away. Neither the decision in Byram Pestonji Gariwala nor any other authority cited on 8.4.1994 before the trial court dispenses with the need of the agreement or compromise being proved to the satisfaction of the court.”
9. Learned counsel for the plaintiff/respondent has also relied upon Jagtar Singh vs. Pargat Singh and others to contend that the counsel can act on the instructions of the party. The relevant portion of the said judgment reads as under:
” The learned counsel for the petitioner has contended that the petitioner had not authorised the counsel to withdraw the appeal. The Court after admitting the appeal has no power to dismiss the same as withdrawn except to decide the matter on merits considering the legality of the reasoning of the trial court and the conclusions either agreeing or disagreeing with it. We find no force in the contention. Order III Rule 4 CPC empowers the counsel to continue on record until the proceedings in the suit are duly terminated. The counsel, therefore, has power to make a statement on instructions from the party to withdraw the appeal. The question then is whether the court is required to pass a reasoned order on merits against the decree appealed from the decisions of the Court of the Subordinate Judge? Order 23 Rules 1(1) and (4) give power to the party to abandon the claim filed in the suit wholly or in party. By operation of Section 107(2) of the CPC, it equally aplies to the appeal and the appellate court has co extensive power to permit the appellant to give up his appeal against the respondent either as a whole or part of the relief. As a consequence, though the appeal was admitted under Order 41 Rule 9, necessarily the Court has the power to dismiss the appeal as withdrawn without going into the merits of the matter and deciding it under Rule 11 thereof.
Accordingly we hold that the action taken by the counsel is consistent with the power he had under Order III Rule 4 CPF. If really the counsel has not acted in the interest of the party or against the instructions of the party, the necessary remedy is elsewhere and the procedure adopted by the court below is consistent with the provisions of CPC. We do not find any illegality in the order passed by the Additional District Judge as confirmed by the High Court in the revision..
10. Reliance has further been placed by the plaintiff/ respondent upon Byram Pestonji Gariwala vs. Union Bank of India , which dealt with order XXIII Rule 3 and construed the expression ‘in writing and signed by the party’ . The relevant portion of the above judgment reads as under:
” There is no reason to assume that the legislatue 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 recognised 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 indicsation of intent in the present case. The legislature has not evinced any intention to change the well recognised 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 with typical of the adversarial system of oral hearing which is in sharp contract to the inquisitorial traditions of the ‘civil law’ of France and other European and Latin American countries where written submissions have the pride of place and oral arguments are considered relatively insignificant (See Rene David Enlgish 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 no indication whatever 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.
11. Shri Sudhir Chandra, the learned counsel for the plaintiff/ respondent has further contended that the two judgments of Gurpreet Singh & Banwari Lal relied upon by the petitioner in this review petition were judgments of two Hon’ble Judges of the Supreme Court and the correct, latest and indeed the binding decision is that of D.P. Chadha’s case which is a judgment of three Hon’ble Judges which judgment interpreted Byram Rastogi Gariwala vs. Union Bank of India . He has further highlighted the fact that up todate there is no challenge to the order dated 8.2.2000 which is the basic order which led to the consequential order of 17.5.2000. The said order of 8.2.2000 is termed by him as a sufferance of a decree and not a settlement contemplated by Order 23 Rule 3 C.P.C. He has relied upon Modern Food vs. I.K. Malik to contend that concession given by Defendant’s counsel was an admission under Order 12 Rule 6 C.P.C. and not an agreement contemplated by Order 23 Rule 3 C.P.C. No doubt there is merit in the plea of Shri Chandra that a Division Bench of this Court in Modern Food (supra) had held that a concession is not an oral agreement and therefore does not require signature of parties.
12. However, without going in to the merits of this plea of the plaintiff, I am satisfied that the review petition can be disposed of even on the basis of the plea relating to the sine-qua-non of signing of the agreement in writing by the parties. No doubt the judgments in Gurpreet Singh (supra) which is a judgment rendered by 2 Hon’ble Judges as well as Banwari Lal’s judgment {(supra) (of 2 Hon’ble Judges)} hold that when a compromise is entered into during the hearing of a suit or appeal there is no reason why such a compromise should not be reduced in writing and signed by the parties. However, D.P. Chadha’s case is a judgment of 3 Hon’ble Judges as contrasted with Gurpreet Singh and Banwari Lal’s cases which decisions were rendered by two Hon’ble Judges and D.P. Chadha’s case clearly explains Byrom Pestonji Goriwala’s case (supra) and construes it to hold that in spite of the 1976 amendment to Order 23 Rule 3 requiring the agreement or compromise to be in writing, the implied authority of counsel engaged is the thick of proceedings in Court, to compromise or agree on matters relating to parties was not taken away. I am fully bound by the view taken by three Hon’ble Judges in DP Chadha’s case. Consequently, the plea by Shri Tripathi that the view taken by the decision of the Supreme Court in Gurpreet Singh’s case lays down the correct interpretation of Order 23 Rule 3 C.P.C. cannot prevail. I have no doubt that but for the judgment of the Hon’ble Supreme Court in D.P. Chadha’s case, the respondent/review petitioner was fully entitled to succeed on the basis of Gurpreet singh’s and Banwari Lal’s judgment.
13. Mr. Tripathi, learned senior counsel for the review petitioner has sought to distinguish the above judgment by referring to the facts of D.P. Chadha’s case and sought to restrict the position of law laid down in the above passage to the facts of the above case where the Court had made these observations in the context of signing of a settlement by a counsel and the absence of signing by the parties. In my view the findings of the Hon’ble Supreme Court were made undoubtedly on the factual matrix contended by Shri Tripathi, but nevertheless that does not take away the effect of the findings of D.P. Chadha’s case (supra) which are categorical about the effect of non signing of a settlement by the parties.
14. In so far as Mr. Tripathi’s pleas that his rights were abandoned by his erstwhile counsel without prior and proper consultation and authorization from the defendant, it is neither practicable, feasible or indeed proper for a court to examine the correspondence between a client and his erstwhile counsel. This Court can not go into such correspondence between client and counsel to determine disputes regarding settlements, instructions and the allegations between client and counsel. The forum for determining such disputes is not a Court of law as held by the Hon’ble Supreme Court in Jagtar Singh’s case (supra).
15. Mr. Tripathi to counter the reliance on DP Chadha’s case(supra) by the counsel for the plaintiff further relied upon Haryana Financial Corporation vs. Jagdamba Oil Mills, to contend that a judgment should not be read like a statute. There can be no divergence on this principle of law but in D.P. Chadha’s case the finding on law is sufficiently unambiguous and even if understood in the broader sense nevertheless supports the plea of the plaintiff. Furthermore the facts of the present case indicate that it is not as if there was settlement in writing which though signed by the counsel was not signed by the parties. The statement made by counsel on 17th May, 2000 enabled the respondent to exhaust his existing stocks within two months. Thus, the above position of law laid down by the Hon’ble Supreme Court in D.P. Chadha’s case binds this Court and I am therefore unable to find any merit in this review petition which is accordingly dismissed. During the pendency of the review petition, there was an interim order which suspended the operation of the Order dated 17th May, 2000. The Order dated 17th May, 2000 will revive with effect from 9th July, 2003.
16. List the suit for directions before the Hon’ble Judge in charge , Original side on 22nd May 2003.
In my view the plea of Mr. Tripathi, learned senior counsel by placing reliance on Gurpreet Singh and Banwari Lal’s cases to contend that settlements must be in writing and signed by the parties though attractive at first blush is not sustainable. No doubt the position of law in Chadha’s case was in the context of the signing of a settlement by counsel and not by the parties. However, this factual situation in no way detracts from the categorical position of law laid down by the Hon’ble Supreme Court in DP Chadha’s case (supra) that a counsel during the proceeding had authority to arrive at a settlement, a situation similar to the present case.