TMI Blog2011 (8) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent herein filed a civil suit being No. 17/Civil/1991 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' 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, 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 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. (d) Challenging the same, the appellants filed Second Appeal No. 19 of 2005 before the High Court of Jammu Kashmir at Jammu. Vide judgment da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel 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 thereunder and Survey No. 109/65 belonging to other side 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 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 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 be the boundary line between two parcels of land belonging to rival sides as aforementioned with the exact demarcating line running from cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. Compromise of Suit 8) Order XXIII of CPC deals with Withdrawal and Adjustment of Suits . Rule 3 of Order XXIII speaks about compromise of suit which reads as under: 3. Compromise of suit.- Where it is proved to the 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 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: 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, thinks fit to grant such adjournment. Explanation--An agreement or compromise which is void or void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is clear from this decision that 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. The substance of 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, the term `instrument' used in above-referred Gurpreet Singh's case ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orating 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 side being the Sheesham and Shreen trees currently existing on the spot. 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 XXIII Rule 3 of CPC, 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 SCC 31 and observed that courts in India have consistently 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 compromise suit or matter pending before the Court. The various clauses in the Vakalatnama undoubtedly gives power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e progress of proceedings in court. If the 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 (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 passed on compromise or settlement and adjustment. It may, at times, be also a judgment on admission. 14) In Jagtar Singh vs. Pargat Singh and Others, (1996) 11 SCC 586, it was held that counsel for the appellant has power to make a statement on instructions from the party to 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 appeal in the Court of Additional Distruct Judge, Hoshiarpur. The counsel made a statement on 15.09.1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure 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. 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 III 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 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 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three-Judge Bench of this Court in Kunhayammed and Others vs. State of Kerala and Another, (2000) 6 SCC 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 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. Once special leave is granted the jurisdiction to consider the validity of the High Court's order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted. 40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. 44. To sum up, our conclusions are: (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The jurisdiction conferred by Article 136 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC. 17) In view of the principle laid down above by this Court, even after dismissal of SLP, the aggrieved parties are entitled to move the court concerned by way of review. In the case on hand, though the appellants moved an SLP in this Court against the order of the High Court in Second Appeal, admittedly, the SLP was dismissed as withdrawn without the leave of the Court. 18) Similar question was considered by this Court in Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior, and Others, (1987) 1 SCC 5. In this decision it was held that where a petitioner withdraws a petition filed by him in the High Court under Article 226/227 without permission to institute a fresh petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental rignt guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open. 19) In the light of the discussion in the earlier paragraphs even after dismissal of an SLP with or w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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