IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21603 of 2010(O)
1. VALSAN JEROME, S/O.ROCKEY, AGED 50
... Petitioner
Vs
1. ROCKEY, S/O.ANTHAPPAN,
... Respondent
2. ANTONY TITUS, S/O.ROCKEY,
3. JULIET RUBAN @ SHIBU, S/O.ROCKEY,
4. DOLLY, D/O.ROCKEY,
5. SAYAI, D/O.ROCKEY,
6. SYNTHITE INDUSTRIAL CHEMICALS LTD.,
For Petitioner :SMT.SHOBA ANNAMMA EAPEN
For Respondent :SRI.K.S.BABU
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :13/09/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.21603 of 2010
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Dated this the 13th day of September, 2010.
JUDGMENT
This Writ Petition is in challenge of Ext.P3, order dismissing I.A.No.4285
of 2009 in O.S.No.528 of 2008 of the court of learned Sub Judge, Ernakulam.
That is a suit for partition filed by petitioner. The suit was resisted by
respondents/defendants. When the case came up for trial in the list on
19.02.2009, respondents were present but petitioner/plaintiff was not present.
Counsel for both parties were present. Proof affidavit of petitioner was filed in
court. At that time it is said, allegedly under instruction from petitioner his
counsel made an endorsement on the plaint that the matter is settled and that
decree could be passed in respect of item No.2 of plaint schedule and excluding
item No.1. Accordingly, a decree was passed. Later petitioner filed I.A.No.4285
of 2009 in the form of review challenging the compromise decree on the ground
that there was no such compromise and the concession made by counsel was
without getting instruction from petitioner. That application was opposed by the
respondents. On I.A.No.4285 of 2009 petitioner gave evidence as PW1.
Learned Sub Judge was not impressed by the evidence of petitioner and
dismissed I.A.No.4285 of 2009. That order (Ext.P3) is under challenge. It is
contended by learned counsel for petitioner that Ext.P3, order cannot be
sustained on the face of evidence given by petitioner as PW1. Learned counsel
for respondents contend that there was infact a compromise entered between
the parties and on the part of petitioner he conveyed the matter to his counsel
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2
over telephone based on which counsel for petitioner made endorsement on the
plaint. Learned counsel has placed reliance on the decisions of the Apex Court
in Jineshwardas v. Jagrani (AIR 2003 SC 4596) and Amteshwar
Anand v. Virender Mohan Singh and others (AIR 2006 SC 151) to
support his contention that it is open to the counsel to make endorsement
regarding settlement and that it is not absolutely necessary that the parties
should joint the compromise.
2. The Supreme Court in Som Dev & others v. Rati Ram &
another (AIR 2006 SC 3297) has held that after 01.02.1977 the
compromise has to be signed by the parties in compliance of Rule 3 of Order
XXIII of Code of Civil Procedure. But in a later decision (See Sneh Gupta v.
Devi Sarup and others – 2009 (2) Supreme 77) it was held that
compromise signed by the counsel on both sides shall be accepted and that the
compromise be signed by parties or by counsel or by both.
3. I am not at the question whether compromise could be signed by
the counsel alone, for, in this case the question for decision is whether
endorsement made on behalf of petitioner by his counsel was with due
instruction. As PW1 petitioner has denied the suggestion that he had given
instruction to his counsel to make such an endorsement. On the day counsel
made the endorsement petitioner was not present in court. According to the
respondents, petitioner had given instruction to his counsel over telephone. But
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that is not a matter within the knowledge of respondents. Nor has any of the
respondents given evidence in that line. Learned Sub Judge found evidence of
petitioner as PW1 not tallying with the averments in the affidavit in support of
I.A.No.4285 of 2009. But that is not on the crucial question whether petitioner
had given instruction to his counsel to make a concession. The evidence given
by petitioner as PW1 is that he had not given any instruction. I also stated that
on the day counsel for petitioner (in the trial court) made the endorsement
regarding settlement, petitioner was admittedly not present in the court. In that
situation learned Sub Judge was not correct in rejecting the evidence of PW1
and dismissing I.A.No.4285 of 2009.
Resultantly this Writ Petition is allowed. Ext.P3, order on I.A.No.4285 of
2009 in O.S.No.528 of 2008 of the court of learned Sub Judge, Ernakulam is set
aside. That application is allowed and the compromise decree is set aside. It
will be open to the parties to proceed with trial of the suit. Since the suit is of the
year 2008 learned Sub Judge is directed to expedite further proceedings in the
suit. Parties shall appear in the trial court on 30.09.2010.
THOMAS P.JOSEPH,
Judge.
cks