JUDGMENT
O.P. Dwivedi, J.
1. This order shall govern the disposal of CR Nos. 500/2002 and 501/2002 filed by Bikana Foods Pvt. Ltd., (defendant No.1 in the suit) and Bikaner Sweet Shop ( defendant No. 3 in the suit) against the order dated 20.4.2002 whereby learned Additional District Judge rejected application under sections 114/151 and 153 CPC seeking review/ recall of the earlier order dated 8.11.2001 whereby suit was disposed of in terms of the compromise between the parties.
2. Briefly stated facts leading to these petitions are that on 23.10.2001, the respondent M/s Bikaner Wala Food Pvt. Ltd., filed a suit seeking permanent injunction against :-
1. Bikana Foods Pvt. Ltd. (petitioner in CR 500/2002)
2. Bikaner Namkeen Centre
3. Bikaner Sweets Shop ( petitioner in CR 501/2002)
3. restraining them from manufacturing, selling, offering for sale their products with trade mark Bikana or any other mark identical or deceptively similar to that of plaintiff’s trade mark ‘Bikano’ amounting an infringement of the plaintiff’s registered trade mark (No. 508457 in class 29, No. 508456 in class 30 and No. 508458 in class 32) and also amounting to passing off their goods as to those of the plaintiff. Other ancillary reliefs like rendition of accounts etc. were also claimed. On 8.11.2001 when the case was taken up Mr. Rajinder Kumar Aggarwal, proprietor, defendant No. 2, Bikaner Namkeen Centre made a compromise statement on behalf of defendant No. 2 as well on behalf of defendant No. 1 as one of its Directors and on behalf of defendant No. 3 as its duly authorised representative, Rajinder Kumar Aggarwal was identified as such by defendant’s counsel Sh. Gurvinder Singh, Advocate who had been engaged as counsel by all three defendants. Rajinder Kumar Aggarwal made statement to the effect that parties have compromised the matter and defendants have agreed to discontinue use of trade mark Bikano in respect to their goods after the expiry of six months from that date. Rajinder Kumar Aggarwal, as proprietor of defendant No. 2, director of defendant No. 1 and authorised representative of defendant No. 3 also undertook to withdraw the rectification petitions which had been filed by defendants in the High Court. Then the statement of Sh. Ajay Sahni, learned counsel for the plaintiff was also recorded who agreed to the proposal of Rajinder Kumar Aggarwal made on behalf of all the defendants. Thereupon, learned Additional District Judge passed the order dated 8.11.2001, which reads as under:-
” 8.11.2001
Present: Shri Ajay Sahni with Shri Parikashit Dhanda and
Shri Gurmeet Singh, counsels for the plaintiff.
Shri Sh. Gurvinder Singh with Shri Neeraj
Grover counsels for the defts with
Shri Rajinder Kumar Aggarwal, defet. No. 2
in person and as director of deft. No.1 and
authorised representative of deft. No.3.
As volunteered, statement of Shri Rajindra Kumar Aggarwal for himself and for deft. No. 1 as its Director and as authorised representative of deft. No.3 duly identified by counsel Shri Gurvidner Singh recorded, Also as volunteered statement of Shri Ajay Sahni, counsel for the plaintiff recorded.
ORDER
In the light of statement of deft. No. 2 for himself and as Director of deft. No.1 and authorised representative of deft. No.3 and that of Shri Ajay Sahni, counsel for the plaintiff; the suit is disposed of as compromised in terms of statements recorded. Of course, the parties are bound by the statements given. No order as to costs. Suit file be consigned to Record Room.
Announced in open court:-
8.11.2001 ADJ/ 8.11.2001″
4. After availing the protection under Order 8.11.2001 for four months for continued user of the trade mark Bikano, defendant No.1 and 3 who are petitioners in CR No. 500-501/2001 respectively filed two similar applications under section 114/151 and 153 CPC for recalling the said compromise order dated 8.11.2001 on the ground that defendant No.2 Rajinder Kumar Aggarwal had no authority to make any such statement on behalf of the defendant No. 1 and 3. Applications were contested by the plaintiff/ respondent. After considering the respective submissions of the learned counsel for the parties, learned Additional District Judge dismissed the application vide impugned order dated 20.4.2002. Feeling aggrieved, these revision petitions have been filed.
5. I have heard, learned counsel for the parties and perused the record.
6. The impugned order has been assailed by the learned counsel for the petitioner mainly on two grounds viz. (1) that after the amendment in 1973, in rule 3 of O. 23 CPC, the compromise has to be by a lawful agreement, reduced in writing and has to be signed by both the parties; (2) the authorisation of the representative to make statement on behalf of the parties has to be specific and not implied.
7. Reliance was placed on the decision of the apex Court reported in Gurpreet Singh v. Chatur Bhuj Goel-. In that case compromise statement which was recorded in the Court on 28.1.87, was not signed by the respondent and there was no separate instrument in writing and signed by the parties. Also no satisfaction of the claim was pleaded, therefore, Supreme Court held that the appellant could file back only on the first part of the O. 23 Rule 3 CPC but since there was no agreement in writing and signed by the parties the same could not be given effect to. In the present case the statements which were recorded on 8.11.2001 in the Court were signed by Rajinder Kumar Aggarwal as proprietor of the defendant No. 2, Director of defendant No.1 and authorised representative of defendant No. 3 and he was so identified by common counsel of all three defendants Sh. Gurvinder Singh, Advocate. The statement on behalf of plaintiff was made by Sh. Ajay Sahni, Advocate who signed the same. It, therefore, cannot be said that in this case there was no agreement or compromise in writing duly signed by the parties. There is no reason why statements made in the Court by the parties/ representatives and duly signed by them cannot be taken to be lawful agreement or compromise in writing & signed by them, within the meaning of O. 23 Rule 3 CPC. Therefore, the moot point for consideration will be whether Rajinder Kumar Aggarwal, was duly authorised to make statement on behalf of defendant No.1 as its Director and defendant No.3 as its authorised representative. In the case of Manmohan Singh Dhaliwal v. Gurbax Singh Arora and Ors., , it was found that the attorney who had signed the compromise application had no authority to withdraw the suit, therefore his action in withdrawing the suit was held to be a fraud played upon the Court and compromise decree was set aside. In the case of M/s Rajghria Paper Mills Ltd. v. General Manager Indian Security Press and Anr.- , it was held that a Director of a company is not competent to file the suit on behalf of the company unless specific powers are conferred upon him in this regard. In the case of M/s Nibro Limited v. National Insurance Co. Ltd., , it was held that suit on behalf of the company can be filed only by a Director specifically empowered by the Board to file such suit. Learned Additional District Judge has taken all these decisions into consideration and observed that in the present case dispute is not regarding competence of the person who filed the suit on behalf of the company. Dispute is as to the competence of Rajinder Kumar Aggarwal to make compromise statement on behalf of defendant No. 1 and 3. Learned Additional District Judge has taken note of relevant facts in this regard. The fact that three defendant concerns are being run by three brothers as also the fact that all three defendants had engaged one counsel Sh. Gurvinder Singh, Advocate are important facts which must be taken note of in this regard and the said counsel Sh. Gurvinder Singh, Advocate was present in the Court at the time when Rajinder Kumar Aggarwal made statement on 8.11.2001. Not only that counsel Sh. Gurvinder Singh, Advocate identified Rajinder Kumar Aggarwal as director and authorised representative of defendant No. 3 also. The fact that rectification petitions had been withdrawn by the defendants from the High Court as per compromise also goes to indicate that statement dated 8.11.2001 was made by Rajinder Kumar Aggarwal with the knowledge and consent of the other defendants. Learned Additional District Judge has taken these facts into consideration and has observed that under the circumstances, it cannot be said that Rajinder Kumar Aggarwal had no authority to make statement on behalf of the defendant No.1 and 3. It seems that after availing protection of order dated 8.11.2001 for four months, defendants have developed second thoughts and with a view to wriggle out of the undertaking given to the Court on 8.11.2001, they have taken this dishonest plea that Rajinder Kumar Aggrwal was not authorised to make statement on behalf of defendant No. 1 and 3. The presence of Sh. Gurvinder Singh, Advocate, who was engaged as counsel by all the three defendants and had identified Rajinder Kumar Aggarwal as Director of defendant No.1 and authorised representative of defendant No.3 and his signing of the proceedings dated 8.11.2001 indicates that he had the instructions to let Sh. R.K. Aggarwal make statement on behalf of all the defendants . Obviously, Sh. Gurvinder Singh, Advocate would not have allowed Rajinder Kumar Aggarwal to make statement on behalf of defendant No. 1 and 3, if he had no instructions in this regard from them. In the case of Byram Pestonji Gariwala V. Union of India- , it was observed that the words ” in writing and signed by the parties” inserted in O. 23, Rule 3 CPC by the CPC (Amendment) Act, 1976 necessarily mean and include duly authorised representative and counsel. Thus a compromise in writing and signed by the counsel representing the parties, but not signed by the parties in person, is valid and binding on the parties and is executable even if the compromise relates to matters concerning the parties, but extending beyond the subject matter of the suit. A judgment by consent is intended to stop litigation between the parties just as much as a judgment resulting from a decision of the Court at the end of a long drawn trial. Counsel’s role in entering into a compromise has been traditionally understood to be confined to matter within the scope of the suit. The position before the amendment in 1976 was that in respect of the subject matter of the suit the decree was executable but in respect of the matter falling out side the subject matter of the suit it was not executable. After the CPC amendment of 1976, a consent decree is executable in terms thereof even if it comprehends matters falling outside the subject matter of the suit, but concerning the parties. The apex Court further observed that 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 mattes 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 indication of intent in amended O. 23 Rule 3 CPC. 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 wits typical of the adversarial system of oral hearing. The apex Court took note of the fact that to insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience. It has always been universally understood that a party can always act by his duly authorised representative. If a power of attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel. These decisions were noticed in a subsequent decision of the Full Bench of the Supreme Court in the case of D.P. Chadha v. Triyugi Narain Mishra and Ors- JT 2000 (Suppl. 3 ) 3 SC 505, in which Supreme Court in para 17 of the Judgment observed that the case of Byram Pestonji Gariwala (Supra) is an authority for the proposition that in spite of the 1976 Amendment in Order 23 Rule 3 CPC which required 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 matter relating to the parties, was not taken away. In the case of Archies Greetings and Gifts Limited V. Garg Plastic- 2000 (27) PTC 1 (Del), learned single Judge of this Court had the occasion to consider the decision in the case of Gurpreet Singh v. Chatur Bhuj Goel- and also the decision of Banwari Lal V. Chando Devi, , and observed that the judgment in the case of D.P. Chadha (Supra) was rendered by the bench of the three judges and therefore a compromise entered into by the Counsel for the party is fully binding upon the parties. It is important to note that in this case there is no allegation from the petitioner’s side that the statement of Rajinder Kumar Aggarwal was a result of any fraud or other malpractice or that counsel Sh. Gurvinder Singh, Advocate had no instruction in the matter on behalf of the defendant No. 1 and 3.
8. For these reasons, I am not inclined to take a different view in the matter. In the result both these revision petitions fail and are hereby dismissed.