Allahabad High Court
Smt. Madhubala vs H.P. Singh And Others on 20 April, 2012
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 58
Case :- WRIT - C No. - 27994 of 2006
Petitioner :- Smt. Madhubala
Respondent :- H.P. Singh And Others
Petitioner Counsel :- Arun Sharma
Respondent Counsel :- S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Heard Sri Arun Sharma, learned counsel for the petitioner and Sri Shukla who has put in appearance on behalf of the respondent no.2, Insurance Company. Inspite of service of notice on respondent no.1 by all modes, no one has put in appearance on his behalf.
The challenge in this petition is to the order passed by the Permanent Lok Adalat dated 29th July 2001 whereby it has proceeded to decide the motor accident claim on the basis of a compromise said to have been entered into by the counsel for the petitioner and the respondent no.2.
Sri Sharma contends that the petitioner had never instructed her counsel to enter into a compromise and even otherwise the compromise was against the interest of her minor child and there was no compromise in writing between the petitioner and the contesting opposite party.
The Permanent Lok Adalat proceeded on the basis of the compromise application bearing exhibit paper No. 22 A and came to the conclusion that in view of the said compromise having been read and explained to the parties, the same deserved to be accepted, as such, the order was passed accordingly on the basis thereof.
The petitioner has come up with a clear case that there was no compromise drawn up in writing or signed by the petitioner and, therefore, the recital contained in the order that the claimant has also signed the same is incorrect. She further submits that her counsel had not been instructed to enter into any compromise. The compromise memo was unauthorized and was not in conformity with the provisions of Order XXIII read with Rule 3 (A) of Civil Procedure Code. The matter had been heard on the previous occasion and the learned counsel was granted time to study the case law including the decision in the case of Byram Pestonji Gariwala Vs. Union Bank of India 1992 Volume (1) S.C.C. Page 31.
Sri Shukla, learned counsel for the respondent states that he does not propose to file any counter affidavit at this stage and, therefore, the matter be disposed of finally.
Sri Sharma has invited the attention of the Court to the Subsequent Judgment of the Apex Court in the case of Banwari Lal Vs. Smt. Chando Devi reported in AIR 1993 SC Page 1139 paragraph Nos. 6 to 10 to urge that the compromise being absolutely void and not in conformity with law, the order impugned deserves to be set aside.
Having perused the aforesaid judgment the ratio laid down therein is that the Court must insist upon the parties to reduce the terms of compromise in writing and further it should be signed by the parties so as to make a complete agreement in terms of the Contract Act capable of being enforced by a court of law. The said judgment now categorically in view of the amendment brought about in Order XXIII Rule 3 of the proviso therein, requires a compromise to the signed by the parties and presented before the Court.
In the instant case there is no dispute that the compromise was not signed by the petitioner and the records also indicates the same impugned order, therefore, incorrectly assumes that the petitioner had signed the compromise. The authorization through the vakalatanama has to be supplemented by the actual compromise being signed by the parties themselves.
In view of this wrong assumption of fact and keeping in view the law laid down by the Apex Court in the case of Banwari Lal (supra), the order dated 29th July 2001 and the subsequent order dated 25.3.2006 rejecting the misc. application of the petitioner, cannot be sustained.
Accordingly the impugned orders dated 29th July 2001 and 25.3.2006 are set aside. The matter stands remitted to the Motor Accident Claims Tribunal to proceed to decide the claim in accordance with law ignoring the said compromise as expeditiously as possible, preferably within a period six months from the date of production of a certified copy of this order. The writ petition is allowed.
Order Date :- 20.4.2012
Manish
