# " BAKSHI DEV RAJ & ANR v. SUDHIR KUMAR

- **Citation:** [2011] 9 S.C.R. 815
- **Court:** Supreme Court of India
- **Decided:** 2011-08-04
- **Case number:** Civil Appeal Nos. 4641-4642 of 2009
- **Bench:** P. Sathasivam, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bakshi-dev-raj-anr-v-sudhir-kumar-27783
- **Pages:** 27

## Headnote

Code of Civil Procedure, 1908:
Or. XX/II r. 3 - Compromise of suit - Requirement of -
c
Held: During the course of hearing, namely, suit or appeal,
when the parties enter into a compromise, the same should
be reduced in writing in the form of an instrument and signed
by the parties .
.,
D
Or. XLVll r. 1 (a) - Review Petition - Maintainability- SLP
filed by the appellants against the Second Appeal -
Dismissal of, as withdrawn, without leave of the Court - Review
petition filed before the High Court against the judgment in
Second Appeal - Maintainability of - Held: Even after
dismissal of an SLP with or without reasons, the aggrieved E
1 party is entitled to file a review - In view of the language used
~
in Or. XLVll r. 1(a), the Review Petition cannot be dismissed
i
on the ground of maintainability - Thus, the review petition
filed by the appellants was maintainable but in view of Or. Ill
r. 1 and 4, and in view of the conduct of the appellants in not
F
raising any objection as to the act of their counsel except filing
review petition, the claim of the appellants cannot be
accepted.
Advocate/Counsel - Role of - In reporting about the
G
,_j
settlement anived at - Extent and nature of authority to act
on behalf of client - Held: Terms appended in Vakalatnama
enable the counsel to perform several acts on behalf of his
client including withdrawal or compromise/settlement of suit
815
H
816
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A or matter pending before the Court - These clauses give
•
power to the counsel to act with utmost interest - Counsel has
power to make a statement on instructions from the party to
withdraw the appeal - In such circumstance, the counsel
making a statement on instructions either for withdrawal of
B appeal or for modification of the decree is well within his
r
competence and if really the counsel has not acted in tl1e
'
interest of the party or against the instructions of the party, the
necessary remedy is elsewhere - On facts, there is no
material to substantiate the plea that the statement of the
c counsel before the High Court during the course of hearing
of Second Appeal was not based on any instructions - Even
otherwise, till filing of the review petition, the appellants did
not question the conduct of their counsel in making such
statement in the course of hearing of second appeal by writing
D a letter or by sending notice disputing the stand taken by their
counsel - In absence thereof, it cannot be construed that the
..
counsel was debarred from making any statement on behalf
of the parties - In order to safeguard the present reputation
of the counsel and to uphold the prestige and dignity of legal
E profession, it is always desirable to get instructions in writing.
The plot of respondent is on one side of the land of
appellant. The respondent filed a suit seeking declaration
of title and possession of the land and also sought
•
decree for permanent injunction restraining the
F appellants in the suit land. The trial court dismissed the
· suit. The first appellate court allowed the appeal in favour
of the respondent. The appellants filed a Second Appeal.
The High Court framed two questions of law. During the
course of submissions, both the counsel agreed that
G without addressing the questions of law so formulated,
the matter could be settled by modifying the decree
....
impugned in appeal. Thereafter, the Second Appeal was
disposed of by the High Court by modifying the decree
with consent of both the parties. The appellant filed SLP
H and the same was dismissed as withdrawn. Thereafter,
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
817
"'
the appellants filed a Review Petition before the High
A
Court for review of the order passed in Second Appeal
and the same was dismissed. Aggrieved, the appellants
filed the instant appeal against the order passed by the
High Court in Second Appeal and in the Review Petition.
ct
8
•
The questions which arose for consideration in these
appeals are whether Review Petition file

## Text

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[2011] 9 S.C.R. 815
"
BAKSHI DEV RAJ & ANR.
A
v.
SUDHIR KUMAR
(Civil Appeal Nos. 4641-4642 of 2009)
1
AUGUST 04, 2011
B
II
[P. SATHASIVAM AND H.L. GOKHALE, JJ.]
Code of Civil Procedure, 1908:
Or. XX/II r. 3 - Compromise of suit - Requirement of -
c
Held: During the course of hearing, namely, suit or appeal,
when the parties enter into a compromise, the same should
be reduced in writing in the form of an instrument and signed
by the parties .
.,
D
Or. XLVll r. 1 (a) - Review Petition - Maintainability- SLP
filed by the appellants against the Second Appeal -
Dismissal of, as withdrawn, without leave of the Court - Review
petition filed before the High Court against the judgment in
Second Appeal - Maintainability of - Held: Even after
dismissal of an SLP with or without reasons, the aggrieved E
1 party is entitled to file a review - In view of the language used
~
in Or. XLVll r. 1(a), the Review Petition cannot be dismissed
i
on the ground of maintainability - Thus, the review petition
filed by the appellants was maintainable but in view of Or. Ill
r. 1 and 4, and in view of the conduct of the appellants in not
F
raising any objection as to the act of their counsel except filing
review petition, the claim of the appellants cannot be
accepted.
Advocate/Counsel - Role of - In reporting about the
G
,_j
settlement anived at - Extent and nature of authority to act
on behalf of client - Held: Terms appended in Vakalatnama
enable the counsel to perform several acts on behalf of his
client including withdrawal or compromise/settlement of suit
815
H
816
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A or matter pending before the Court - These clauses give
•
power to the counsel to act with utmost interest - Counsel has
power to make a statement on instructions from the party to
withdraw the appeal - In such circumstance, the counsel
making a statement on instructions either for withdrawal of
B appeal or for modification of the decree is well within his
r
competence and if really the counsel has not acted in tl1e
'
interest of the party or against the instructions of the party, the
necessary remedy is elsewhere - On facts, there is no
material to substantiate the plea that the statement of the
c counsel before the High Court during the course of hearing
of Second Appeal was not based on any instructions - Even
otherwise, till filing of the review petition, the appellants did
not question the conduct of their counsel in making such
statement in the course of hearing of second appeal by writing
D a letter or by sending notice disputing the stand taken by their
counsel - In absence thereof, it cannot be construed that the
..
counsel was debarred from making any statement on behalf
of the parties - In order to safeguard the present reputation
of the counsel and to uphold the prestige and dignity of legal
E profession, it is always desirable to get instructions in writing.
The plot of respondent is on one side of the land of
appellant. The respondent filed a suit seeking declaration
of title and possession of the land and also sought
•
decree for permanent injunction restraining the
F appellants in the suit land. The trial court dismissed the
· suit. The first appellate court allowed the appeal in favour
of the respondent. The appellants filed a Second Appeal.
The High Court framed two questions of law. During the
course of submissions, both the counsel agreed that
G without addressing the questions of law so formulated,
the matter could be settled by modifying the decree
....
impugned in appeal. Thereafter, the Second Appeal was
disposed of by the High Court by modifying the decree
with consent of both the parties. The appellant filed SLP
H and the same was dismissed as withdrawn. Thereafter,
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
817
"'
the appellants filed a Review Petition before the High
A
Court for review of the order passed in Second Appeal
and the same was dismissed. Aggrieved, the appellants
filed the instant appeal against the order passed by the
High Court in Second Appeal and in the Review Petition.
ct
8
•
The questions which arose for consideration in these
appeals are whether Review Petition filed before the High
Court against the judgment in Second Appeal is
maintainable in view of dismissal of SLP filed against the
said Second Appeal; that whether the statement of the c
counsel conveying that the parties have settled and
modified the decree without a written document or
consent from the appellants is acceptable; and that
)'
whether dismissal of SLP as withdrawn without leave of
the CQurt to challenge the impugned order therein before
D
...
an appropriate court/forum is a bar for availing such
remedy.
Dismissing the appeals, the Court
HELD: 1.1 In terms of Order XXlll Rule 3 of the Code
E
of Civil Procedure, 1908, agreement or compromise is to
be in writing and signed by the parties. During the course
"
of hearing, namely, suit or appeal, when the parties enter
into a compromise, the same should be reduced in
writing in the form of an instrument and signed by the
F
parties. The Court must insist upon the parties to reduce
the terms into writing. [Paras 9 and 12] [828-D-E; 830-AB]
Gurpreet Singh vs. Chatur Bhuj Goel (1988) 1 SCC 270:
1988 (2) SCR 401; Pushpa Devi Bhagat (dead) through LR.
G
.;
Sadhna Rai (Smt.) vs. Rajinder Singh and Ors. (2006) 5 SCC
566: 2006 (3 ) Suppl. SCR 370 - referred to.
1.2 In the instant case, during the course of hearing
of second appeal, both counsel agreed that without H
818
SUPREME COURT REPORTS
(2011] 9 S.C.R.
A addressing the questions of law so formulated, the matter
can be settled by modifying the decree impugned in
appeal by incorporating the area of land under Survey
No. 110/65 with the boundary between the lands
thereunder and Survey No.109/65 belonging to the other
B side being the Sheesham and Shreen trees currently
existing on the spot. [Para 11) [829-F-G]
2.1 The terms appended in Vakalatnama enable the
counsel to perform several acts on behalf of his client
C including withdraw or compromise suit or matter pending
before the Court. The various clauses in the Vakalatnama
undoubtedly gives power to the counsel to act with
utmost interest which includes to enter into a
compromise or settlement. [Para 12) [830-C-D]
D
2.2 The counsel who was duly authorized by a party
to appear by executing Vakalatnama and in terms of
Order Ill Rule 4, empowers the counsel to continue on
record until the proceedings in the suit are duly
terminated. The counsel, therefore, has power to make a
E statement on instructions from the party to withdraw the
appeal. In such circumstance, the counsel making a
statement on instructions either for withdrawal of appeal
or for modification of the decree is well within his
competence and if really the counsel has not acted in the
F interest of the party or against the instructions of the
party, the necessary remedy is elsewhere. Though the
counsel for the appellant vehemently submitted that the
statement of the counsel before the High Court during the
course of hearing of Second Appeal was not based on
G any instructions, there is no such material to substantiate
the same. No doubt, the counsel for the appellant has
placed reliance on the fact that the first appellant was
bedridden and hospitalized, thus, he could not send any
instruction. According to him, the statement made before
the Court that too giving of certain rights cannot be
H sustained and beyond the power of the counsel. It is true
•
•
!H
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
819
"'
that at the relevant time, namely, when the counsel made
A
a statement during the course of hearing of second
appeal one of the parties was ill and hospitalized./
However, it is not in dispute that his son who was also a
party before the High Court was very much available.
..
Even otherwise, it is not in dispute that till filing of the
B
f
review petition, the appellants did not question the
conduct of their counsel in making such statement In the
course of hearing of second appeal by writing a letter or
by sending notice disputing the stand taken by their
counsel. In the absence of such recourse or material In c
the light of the provisions of the CPC, it cannot be
construed that the counsel is debarred from making any
statement on behalf of the parties. No doubt, in order to
safeguard the present reputation of the counsel and to
uphold the prestige and dignity of legal profession, it is D
'
'always desirable to get instructions in writing. [Para 15]
[833·F·H; 834-A·E]
1
.
·
Byram Pestonji Gariwala vs.· Union Bank of India and Ors.
(1992) 1 SCC 31: 1991 (1) Suppl. SCR 187; Jineshwardas
(D) by LRs and Ors. vs. Jagrani (Smt) and Anr. (2003) 11 SCC
E
372: 2003 (4) Suppl. SCR 179; Jagtar Singh vs.Pargat Singh
and Ors. (1996) 11 sec 586: 1996 (9) Suppl. SCR 252 -
relied on.
3. The High Court, based on the statement of both
counsel disposed of Second Appeal by modifying 'the
F
decree. Against the said order of the High Court, the
appellants preferred the SLP before this Court. This Court
accepted the prayer made by the counsel for the
petitioner to withdraw the petition and dismissed the
G
_,
special leave petition as withdrawn. A reading of the said
order makes it clear that based on the request of the
counsel, the SLP came to be dismissed as witl;ldrawn. It
is also clear that there is no permission or reservation or ·
liberty for taking further action. However, dismissal of SLP
H
..
820
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A is not a bar for filing review before the same Court. Even
after dismissal of SLP, the aggrieved parties are entitled
to move the court concerned by way of review. In the
instant case though the appellants moved an SLP in this
Court against the order of the High Court In Second
B Appeal, admittedly, the SLP was dismissed as withdrawn
without the leave of the Court. [Paras 16 and 17] [834-GH; 835-B-C; 839-C-D]
Kunhayammed and Ors. vs. State of Kera/a and Anr.
(2000) 6 SCC 359: 2000 (1) Suppl. SCR 538; Sarguja
C Transport Service vs. State Transport Appellate Tribunal,
M.P. Gwalior and Ors. (1987) 1 SCC 5: 1987 (1) SCR 200 -
relied to.
4.1. Even after dismissal of an SLP with or without
D reasons, the aggrieved party is entitled to file a review.
In view of the language used in Order XLVll Rule 1(a) of
CPC which relates to "Review", the present Review
Petition cannot be dismissed on the ground of
maintainability. Thus, the review petition filed by the ..
E appellants was maintainable but in view of Order Ill Rules '
1 and 4, Chapter relating to the role of Pleaders, and in
view of the conduct of the appellants in not raising any
objection as to the act of their counsel except filing
review petition, the claim of the appellants cannot be
F accepted. [Para 19] [841-C-E]
4.2. It was contended by the appellant that by the
concession of their counsel, the appellants lost their
property and they suffered huge loss in terms of money.
On perusal of the modified decree as available in the
G order of the High Court in Second Appeal and the sketch
produced about the existence of Sheesham and Shreen
trees running as a demarcating line and whenever those
trees fall on either side the parties having ownership of
the land get right to use the same, the contention cannot
H be accepted. [Para 20] [841-F-G]
•
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
821
..
Case Law Reference:
A·
1988 (2) SCR 401
Referred to
Para 9
2006 (3 ) Suppl. SCR 370Referred to
Para 10
•
1991 (1) Suppl. SCR 187 Relied on
Para 12, 15
B
~
2003 (4) Suppl. SCR 179 Relied on
Para 13 ·
1996 (9) Suppl. SCR 252 Relied on
Para 14
2000 (1) Suppl. SCR 538 Relied on
Para 16
c
1987 (1) SCR 200
Referred to
Para 18
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
•
4641-4642 of 2009 .
-;
From the Judgment & Order dated 18.03.2008 &
08.09.2008 of the High Court of Jammu & Kashmir at Jammu
in Civil Seco.nd Appeal No. 19 of 2005 & Review P~tition No.
(C) D-5 of 2008.
Dinesh Kumar Garg, B.J. Billowria, Dr. Bheem Pratap
E
Singh, Abhishek Garg for the Appellants.
Ranjeet Kumar, Sameer Parekh, Carmichael Martin, Sumit
'
Goel, Debojyoti Bhattacharya, Parekh & Co. for the
}
Respondent
F
The Judgment of the Court was delivered by
P.SATHASIVAM,J. 1. These appeals are directed against
the final judgment and orders dated 18.03.2008 and
08.09.2008 passed by the High Court of Jammu & Kashmir at
G
Jammu in Civil Second Appeal No. 19 of 2005 and Review
.......
•·
Petition (C) No. D-5 of 2008 respectively whereby the High
Court dismissed the second appeal and the review petition filed
by the appellants herein.
2. Brief facts:
H
822
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A
(a) Shri Harbans Lal, father of the appellant No.1,
purchased the land in dispute measuring 40 kanal 4 marlas
bearing Khasra No. 65 in Village Chak Gainda, Tehsil Kathua
from one Gurdas by way of a registered sale deed dated
18.03.1959. The said land falls in Khasra No. 109/65 and the
8 same was recorded in the name of the father of the appellant
No.1 and after his father's death the name of appellant No.1
• '
was recorded from Kharif 1987.
(b) The plot of Sudhir Kumar-the respondent herein is on
c the southern side of the land of the appellants. On 29;04.1991,
the respondent herein filed a civil suit being No. 17 /Civil/1991
t
in the Court of sub-Judge, Kathua seeking a declaratory decree
to the effect that he is the owner and in possession of the suit
land measuring and bounded by East Kathua Kalibari Road 90'
D
West Police Line measuring 96', North Land of Bakshi Dev Raj
(appellant No. 1 herein} and South, Lane 460' situated at Ward
..
No.1 Village Chak Gainda, Tehsil Kathua and further sought
decree for permanent injunction restraining the appellants
herein in the suit land. On 06.04.1993, the appellants herein filed
a joint written statement in the above civil suit. The trial Court,
E vide judgment dated 25.04.2003, dismissed the suit filed by the
respondent herein.
(c} Aggrieved by the said judgment, the respondent filed
Civil First Appeal No.6 in the Court of District & Sessions
~
F Judge, Kathua. The first appellate Court, vide judgment and
decree dated 09.06.2005, set aside the judgment and order
dated 25.04.2003, passed by the trial Court and allowed the
appeal in favour of the respondent.
G
(d} Challenging the same, the appellants filed Second
Appeal No. 19 of 2005 before the High Court of Jammu &
Kashmir at Jammu. Vide judgment dated 18.03.2008, the
-
second appeal was disposed of by the High Court by modifying
the decrae with the consent of both the parties.
H
(e} Against the said order, a special leave petition bearing
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
823
,.
[P. SATHASIVAM, J.]
S.L.P. (C) No. 10939 of2008 was filed by the appellants herein
A
before this Court and the same was dismissed as withdrawn
on 14.05.2008. On 21.05.2008, the appellants filed a review
petition being Review Petition (C) No. D-5/2008 before the High
)•
Court for review of the order dated 18.03.2008 passed in
t
Second Appeal. The learned single Judge of the High Court,
B
by order dated 08.09.2008, dismissed the review petition filed
by the appellants.
'
(f) Aggrieved by the final orders dated 18.03.2008 passed
by the High Court in Second Appeal and the order dated c
08.09.2008 in the review petition, the appellants filed the
present appeals before this Court by way of special leave
.,
petitions .
_,
3. Heard Mr. Dinesh Kumar Garg, learned counsel for the
..
appellants and Mr. Ranjit Kumar, learned senior counsel
D
appearing for the respondent.
4. The questions which arise for consideration in these
appeals are:
(i)
Whether Review Petition (C) No. D-5/2008 filed
E
·~
before the High Court against the judgment in
)
Second Appeal No. 19 of 2005 is maintainable in
view of dismissal of SLP (C) No. 10939 of 2008
dated 14.05.2008 by this Court filed against the
said Second Appeal?
F
(ii)
Whether the statement of the counsel conveying that
the parties have settled and modified the decree
without a written document or consent from the
.....
appellants is acceptable? and
G
(iii)
Whether dismissal of SLP as withdrawn without
leave of the Court to challenge the impugned order
therein before an appropriate court/forum is a bar
for availing such remedy?
H
,. ,
824
SUPREME COURT REPORTS
(2011] 9 S.C.R.
A
5. The present appellants filed Second Appeal No. 19 of
2005 before the High Court questioning the judgment and
decree dated 09.06.2005 of the first appellate Court in First
Appeal No.6. While admitting the above second appeal, the
High Court framed two questions of law, one, as to whether the
•
B report of the Commissioner is admissible evidence without its
formal proof and the other, whether the reliance can be placed
on a site plan prepared by an Architect when the same record
is available with the Revenue Authorities which has been
withheld by the plaintiff. It is further seen from the order of the
r
c High Court that during the course of submissions, both the
counsel agreed that without addressing the questions of law so
formulated, the matter can be settled by modifying the decree
impugned in appeal by incorporating the area of land under
Survey No. 110/65 with the boundary between the lands
,_
D thereunder and Survey No. 109/65 belonging to other side
p
being the Sheesham and Shreen trees currently existing on the
spot. They further conceded that whatever of their respective
land falling on either side would not be claimed by them and
the Sheesham and Shreen trees would be respondent's
E property to be cut by him within a reasonable period of time.
Based on the above submissions by both the counsel, the High
Court modified the impugned decree in the following manner:
"(a) The suit of respondent/plaintiff is decreed restraining
other side from interfering or causing any interference or
F
encroaching upon any portion of his land measuring 11
kanals 12 marlas under survey No 110/65 along with his
other proprietary land whatever existing on spot.
(b) The sheesham and shreen trees existing on spot would
G
be the boundary line between two parcels of land belonging
.....
to rival sides as aforementioned with the exact
demarcating line running 1rom centre of trees, which would
be property of respondent/plaintiff to be cut by him at an
appropriate time without undue delay.
H
(c) Whenever proprietary land of either parties falls on
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
825
~
[P. SATHASIVAM, J.]
other side of the trees to form part of Opposite Party land
A
stands conceded to each other by respective parties over
which their claims would be deemed to have been
abandoned.
>
(d) No costs."
~
.B
6. By pointing out that the concession given by the counsel
for the appellants before the High Court was not lawful and in
violation of Section 23 of the Indian Contract Act, 1872 and that
the second appeal was disposed of without hearing on
substantial questions of law framed by the Court, the appellants c
filed Review Petition (C) No. No.D-5/2008. Even before the
High Court, an objection was raised as to the maintainability
"'
of the review petition by pointing out the following objections:
A
"(a) that once the petitioner had preferred an appeal before
D
the Supreme Court, the review was barred under 0. 47
Rule 1 Sub-Rule (1) of C.P.C.
(b) that application is time barred, period of limitation
prescribed for filing review in terms of Rule 66 Sub Rule
E
(3) of J&K High Court Rules is 30 days.
'
(c) that review application can be maintained only if some
evidence or matter has been discovered and it was not
within the knowledge of petitioner when the decree was
passed or where there was a mistake or an error apparent
F
on the fact of record."
7. In view of the above objections, the learned single Judge
heard the review petition both on merits and its maintainability
at length. A contention was raised with reference to Order XXlll
G
•
Rule 3 of the Code of Civil Procedure, 1908 (hereinafter
referred to as "CPC") and Order XLVll sub-rule (1) of Rule 1, _
ultimately, after finding that the question raised is not a question
of law and not an error apparent on the face of the record,
dismissed the review petition. In the present appeal, the
H
826
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A appellants challenged not only the dismissal of the review
petition but also final judgment in second appeal filed before
the High Court. With these factual details, let us consider the
questions posed in the earlier paragraphs. Inasmuch as Mr.
Ranjit Kumar, learned senior counsel for the respondent raised
•
B an objection as to the maintainability of the present appeal, let
us consider the same at the foremost and finally the merits of
the impugned order of the High Court.
Compromise of Suit
c
8. Order XXlll of CPC deals with "Withdrawal and
Adjustment of Suits". Rule 3 of Order XXlll speaks about
"compromise of suit" which reads as under:
"3. Compromise of suit.- Where it is proved to the
..
D
satisfaction of the Court that a suit has been adjusted
wholly or in part by any lawful agreement or compromise
in writing and signed by the parties, or where the defendant
satisfies the plaintiff in respect of the whole or any part of
the subject matter of the suit, the Court shall order such
E
agreement, compromise or satisfaction to be recorded,
and shall pass a decree in accordance therewith so far as
it relates to the parties to the suit, whether or not the subject
matter of the agreement, compromise or satisfaction is the
same as the subject matter of the suit:
F
Provided that where it is alleged by one party and denied
by the other that an adjustment or satisfaction has been
arrived at, the Court shall decide the question; but no
adjournment shall be granted for the purpose of deciding
the question, unless the Court, for reasons to be recorded,
G
thinks fit to grant such adjournment.
--
•
Explanation-An agreem&nt or compromise which is void
or voidable under the Indian Contract Act, 1872 (9 of
!:
1872), shall not be deemed to be lawful within the meaning
'
H
of this rule.·
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
827
-~
[P~ SATHASIVAM, J.]
9. The very same rule was considered by this Court in
A
Gurpreet Singh vs. Chatur Bhuj Goel, (1988) 1 SCC 270. In
that case, the respondent therein Chatur Bhuj Goel, a practising
advocate at Chandigarh first lodged a criminal complaint
}
against Colonel Sukhdev Singh, father of the appellant, under
,,
Section 420 of the Indian Penal Code 1860 (hereinafter
B
referred to as "the IPC"), after he had served the respondent
with a notice dated 11.07 .1979 forfeiting the amount of
Rs.40,0001- paid by him by way of earnest money, alleging that
he was in breach of the contract dated 04.06.1979 entered into
between Colonel Sukhdev Singh, acting as guardian of the c
appellant, then a minor, and the respondent, for the sale of
residential house No. 1577, Sector-18-D, Chandigarh for a
1
consideration of Rs,2,85,000/-. In terms of the agreement, the
respondent was to pay a further sum of Rs.1,35,000/- to the
,,,
appellant's father- Colonel Sukhdev Singh by 10.07.1979 when
D
the said agreement of sale was to be registered and vacant
possession of the house delivered to him, and the balance
amount of Rs.1,10,000/- on or before 31.01.1980 when the
deed of convey;mce was to be executed. The dispute between
the parties was that according to Colonel Sukhdev Singh, there
E
was failure on the part of the respondent to pay the amount of
Rs.1,35,000/- and get the agreement registered, while the
..
respondent alleged that he had already purchased a bank draft
)
in the name of the appellant for Rs.1,35,000/- on 07.07.1979
but the appellant's father did not turn up to receive the same.
F
Although the Additional Chief Judicial Magistrate by order dated
31.10.1979 dismissed the complaint holding that the dispute
was of a civil nature and no process could issue on the
complaint, the learned Single· Judge, by his order dated
11.02 .1980 set aside the order of the learned Additional Chief
..
Judicial Magistrate holding that the facts brought out clearly G
warranted an inference of dishonest intention on the part of
Colonel Sukhdev Singh and accordingly directed him to
proceed with the trial according to law. Aggrieved Colonel
Sukhdev Singh came up in appeal to this Court by way of
H
828
SUPREME COURT REPORTS
(2011) 9 S.C.R.
A special leave. While construing Order XXlll Rule 3 of CPC, this
Court concluded thus:
"10. Under Rule 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
B
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
c
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
D
into writing."
It is clear from this decision that dL.ring the course of hearing,
namely, suit or appeal, when the parties enter into a
compromise, the same should be reduced in writing in the form
of an instrument and signed by the 'parties. The substance of
E the said decision is that the Court must insist upon the parties
to reduce the terms into writing.
10. In Pushpa Devi Bhagat (dead) through LR. Sadhna
Rai (Smt.) vs. Rajinder Singh and Others, (2006) 5 SCC 566,
F
the term 'instrument' used in above-referred Gurpreet Singh's
case (supra} refers to a writing a formal nature, this Court
explained that when the hearing of letters patent appeal
commenced before the High Court, the parties took time to
explore the possibility of settlement and when the hearing was
G
resumed, the appellant's father made an offer for settlement
which was endorsed by the counsel for the appellant also. The
respondent was also present there and made a statement
accepting the offer. The said offer and acceptance were not
treated as final as the appeal was not disposed of by recording
those terms. On the other hand, the said proposals were
H recorded and the matter was adjourned for payment in terms
~
"'
-
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
829
[P. SATHASIVAM, J.]
of the offer. When the matter was taken up on the next date of A
hearing, the respondent stated that he is not agreeable. The
High Court directed that the appeal would now be heard on
merits as the respondent was not prepared to abide by the
'I'
proposed compromise. The said order was challenged before
t
this Court by the appellant by contending that the matter was
B
settled by a lawful compromise by recording the statement by
appellant's counsel and the respondent's counsel and the
respondent could not resile from such compromise and,
therefore, the High Court ought to have disposed of the appeal
in terms of the compromise. It is in this factual background, the c
question was considered with reference to Gurpreet Singh's
case (supra). This was explained in Pushpadevi's case (supra)
'
that the distinguishing feature in that case was that though the
-~
submissions made were recorded but that were not signed by
the parties or their counsel, nor did the Court treat the
D
submissions as a compromise. In Pushpadevi's case (supra),
the Court not only recorded the terms of settlement but
thereafter directed that the statements of the counsel be
recorded. The statement of the counsel were also recorded on
oath read over and accepted by the counsel to be correct and
E
then signed by both counsel. In view of the same, in
•
Pushpadevi's case (supra), it was concluded that there was a
)
valid compromise in writing signed by the parties (represented
counsel).
11. In the earlier part of our order, we have already
F
recorded that during the course of hearing of second appeal,
both counsel agreed that without addressing the questions of
law so formulated, the matter can be settled by modifying the
decree impugned in appeal by incorporating the area of land
.-j
under Survey No. 110/65 with the boundary between the lands G
thereunder and Survey No.109/65 belonging to the other side
being the Sheesham and Shreen trees currently existing on the
spot.
H
830
SUPREME COURT REPORTS
[2011] 9 S.C.R.
t
A Role of the counsel
12. Now, we have to consider the role of the counsel
reporting to the Court about the settlement arrived at. We have
already noted that in terms of Order XXlll Rule 3 of CPC,
..
B agreement or compromise is to be in writing and signed by the
parties. The impact of the above provision and the role of the
counsel has been elaborately dealt with by this Court in Byram
Pestonji Gariwala vs. Union Bank of India and Others, (1992)
1 sec 31 and observed that courts in India have consistently
c
recognized the traditional role of lawyers and the extent and
nature of implied authority to act on behalf of their clients. Mr.
Ranjit Kumar, has drawn our attention to the copy of
Vakalatnama (Annexure-R3) and the contents therein. The
•
terms appended in Vakalatnama enable the counsel to perform
several acts on behalf of his client including withdraw or
•
D compromise suit or matter pending before the Court. The
various clauses in the Vakalatnama undoubtedly gives power
to the counsel to act with utmost interest which includes to enter
into a compromise or settlement. The following observations
and conclusions in paras 37, 38 and 39 are relevant:
E
"37. We may, however, hasten to add that it will be prudent
for counsel not to act on implied authority except when
•
warranted by the exigency of circumstances demanding
immediate adjustment of suit by agreement or compromise
and the signature of the party cannot be obtained without
F
undue delay. ln·these days of easier and quicker
communication, such contingency may seldom arise. A
wise and careful counsel will no doubt arm himself in
advance with the necessary authority expressed in writing
to meet all such contingencies in order that neither his
G
authority nor integrity is ever doubted. This essential
-
precaution will safeguard the personal reputation of
counsel as well as uphold the prestige and dignity of the
legal profession.
H
38. Considering the traditionally recognised role of counsel
in the common law system, and the evil sought to be
-I
-·
)
1
""'
•
~
.....
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
831
[P. SATHASIVAM, J.]
remedied by Parliament by the C.P.C. (Amendment) Act,
A
1976, namely, attainment of certainty and expeditious
disposal of cases by reducing the terms of compromise
to writing signed by the parties, and allowing the
compromise decree to comprehend even matters falling
outside the subject matter of the suit, but relating to the
B
parties, the legislature cannot, in the absence of express
words to such effect, be presumed to have disallowed the
parties to enter into a compromise by counsel in their
cause or by their du!y authorised agents. Any such
presumption would be inconsistent with the legislative c
object of attaining quick reduction of arrears in court by
elimination of uncertainties and enlargement of the scope
of compromise.
39. To insist upon the party himself personally signing the
agreement or compromise would often eause undue delay,
D
loss and inconvenience, especially in the case of nonresident persons. 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,
E
so can counsel, possessed of the requisite authorisation
by vakalatnama, act on behalf of his client. Not to
recognise such capacity is not only to cause much
inconvenience and loss to the parties personally, but also
to delay the progress of proceedings in court. If the
F
legislature had intended to make such a fundamental
change, even at the risk of delay, inconvenience and
needless expenditure, it would have expressly so stated."
13. In Jineshwardas (D) by LRs and Others vs. Jagrani G
(Smt) and Another, (2003) 11 SCC 372, this Court, by
approving the decision taken in Byram Pestonji's case (supra),
held that a judgment or decree passed as a result of consensus
arrived at before Court, cannot always be said to be one
bassed on compromise or settlement and adjustment. It may,
u
832
SUPREME COURT REPORTS
[2011] 9 S.C.R.
A at times, be also a judgment on admission.
14. In Jagtar Singh vs. Pargat Singh and Others, (1996)
11 sec 586, it was held that counsel for the appellant has
power to make a statement on instructions from the party to
8 withdraw the appeal. In that case, respondent No.1 therein, elder
brother of the petitioner filed a suit for declaration against the
petitioner and three brothers that the decree dated 04.05.1990
was null and void which was decreed by subordinate Judge,
Hoshiarpur on 29.09.1993. The petitioner therein filed an
C appeal in the Court of Additional Distruct Judge, Hoshiarpur.
The counsel made a statement on 15.09.1995 that the
petitioner did not intend to proceed with the appeal. On the
basis thereof, the appeal was dismissed as withdrawn. The
petitioner challenged the order of the appellate court in the
revision. The High Court confirmed the same which
D necessitated filing-of SLP before this Court. Learned counsel
for the petitioner contended that the petitioner had not
authorized the counsel to withdraw the appeal. It was further
contended that the court after admitting the appeal has no
power to dismiss the same as withdrawn except to decide the
E matter on merits considering the legality of the reasoning of the
trial Court and the conclusions either agreeing or disagreeing
with it. Rejecting the said contention, the Court held as under:
F
G
H
"3. 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 conclusio'ns either
agreeing or disagreeing with it. We find no force in the
contention. Order Ill 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
..
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
833
[P. SATHASIVAM, J.]
.,
to pass a reasoned order on merits against the decree
A
appealed from the decision 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 part.
By operation of Section 107(2) of the CPC, it equally
~
applies to the appeal and the appellate court has coB
f
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 Col.'rt has
the power to dismiss the appeal as withdrawn without c
going into the merits of the matter and deciding it under
Rule 11 thereof.
4. Accordingly, we hold that the action taken by the counsel
, >-
is consistent with the power he had under Order Ill Rule 4
CPC. If really the counsel has not acted in the interest of D
the party or against the instructions of the party, the
necessary remedy is elsewhere an~ the procedure
adopted by the court below is consistent with the
provisions of CPC. We do not find any illegality in the order
E
passed by the Additional District Judge as confirmed by
the High Court in the revision."
•
15. The analysis of the above decisions make it clear that
)
the counsel who was duly authorized by a party to appear by
executing Vakalatnama and in terms of Order Ill Rule 4,
F
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. In such circumstance, the
counsel making a statement on instructions either for withdrawal
G
~
of appeal or for modification of the decree is well within his
competence and 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. Though learned counsel for the
appellant vehemently submitted that the statement of the
H
834
SUPREME COURT REPORTS
[2011) 9 S.C.R.
A counsel before the High Court during the course of hearing of
Second Appeal No. 19. of 2005 was not based on any
instructions, there is no such material to substantiate the same.
No doubt, Mr. Garg has placed reliance on the fact that the first
appellant was bedridden and hospitalized, hence, he could not
B send any instruction. According to him, the statement made
before the Court that too giving of certain rights cannot be
sustained and beyond the power of the counsel. It is true that
at the relevant time, namely, when the counsel made a
statement during the course of hearing of second appeal one
c of the parties was ill and hospitalized. However, it is not in
dispute that his son who was also a party before the High Court
was very much available. Even otherwise, it is not in dispute
that till filing of the review petition, the appellants did not question
the conduct of their counsel in making such statement in the
0 course of hearing of second appeal by writing a letter or by
sending notice disputing the stand taken by their counsel. In the
absence of such recourse or material in the light of the
provisions of the CPC as discussed and interpreted by this
Court, it cannot be construed that the counsel is debarred from
making any statement on behalf of the parties. No doubt, as
E pointed out in Byram Pestonji (supra), in order to safeguard
the present reputation of the counsel and to uphold the prestige
and dignity of legal profession, it is always desirable to get
instructions in writing.
F Maintainability of Review Petition
16. Now, let us consider the maintainability of the review
petition filed before the High Court after dismissal of SLP (C}
No. 10939 of 2008 before this Court. It is not in dispute that
G the High Court, by order dated 18.03.2008, based on the
statement of both counsel disposed of Second Appeal No. 19
of 2005 by modifying the decree as stated therein. Against the
said order of the High Court, the appellants preferred the above
said SLP before this Court. By order dated 14.05.2008, this
H Court after hearing the counsel for the appellants passed the
following order:
..
BAKSHI DEV RAJ & ANR. v. SUDHIR KUMAR
835
[P. SATHASIVAM, J.]
"Learned counsel for the petitioner prays to withdraw the
A
"!
petition. Prayer made is accepted. The special leave
petition is dismissed as withdrawn"
A reading of the above order makes it clear that based on the
request of the counsel, the SLP came to be dismissed as
B
j
withdrawn. It is also clear that there is no permission or
r
reservation or liberty for taking further action. However,
dismissal of SLP is not a bar for filing review before the same
Court. This aspect was considered by a three-Judge Bench of
this Court in Kunhayammed and Others vs. State of Kera/a c
and Another, (2000) 6 sec 359. The above aspect was dealt
with elaborately in paras 38, 40 and 44.
"38. The review can be filed even after SLP is dismissed
is clear from the language of Order 47 Rule 1 (a). Thus the
words "no appeal" has been preferred in Order 47 Rule
D
~
1(a) would also mean a situation where special leave is
not granted. Till then there is no appeal in the eye of law
before the superior court. Therefore, the review can be
preferred in the High Court before special leave is granted,
but not after it is granted. The reason is obvious.