Delhi High Court
Bhagwan Mahaveer Educational ... vs Mr. Rajesh Jindal & Ors. on 3 February, 2011
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 02.12.2010
Pronounced on : 03.02.2011
+ R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007
BHAGWAN MAHAVEER EDUCATIONAL SOCIETY
(REGD). & ORS ...... Plaintiffs
Through: Sh. Neeraj Grover, Advocate.
versus
MR. RAJESH JINDAL & ORS. ..... Defendants
Through: Nemo.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers YES
may be allowed to see the judgment?
2. To be referred to Reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
MR. JUSTICE S.RAVINDRA BHAT
%
1. This order will dispose of three applications preferred by two of the plaintiffs, claiming
review of an earlier order dated 19th May, 2010, which had finally disposed of the suit. The two
other applications, seek condonation of delay in filing the review petition, and an ad-interim
direction.
2. Brief facts, for the purpose of this suit, are that the first plaintiff claims to be a registered
society; the second plaintiff cltaims to have been its president, and the other two plaintiffs, its
members, as well as office bearers of the governing council of the first plaintiff (hereafter "the
society"). The suit claims decrees of declaration, that the second, third and fourth defendants are
not lawfully inducted members of the society. It is alleged that the first defendant deliberately
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 1
manipulated and forged the records of the society, to show as if the said three members had been
inducted, even though actually the agenda for the relevant meetings never listed any item in that
regard, and despite absence of any discussion. It is also alleged that the minutes of meeting of the
managing committee were further falsified and manipulated by the first defendant, to say that the
said three defendants had been accepted as members, and had even attended later meetings in
February 2007. The suit alleges that the first defendant sought to circulate an agenda, by which a
general meeting of the society was purportedly called, and elections were held on 2-4-2007. The
plaintiffs further argue that the second plaintiff sent a notice on 20th March, 2007, and followed it
up with notices published in the newspapers, cautioning that no such general meeting and
elections could be held. The suit alleges that despite these, the first defendant held out that a
meeting was held on that date, and election of office bearers of the society had taken place. The
suit also urges that the first defendant thus usurped the society, claiming to be its President, and
started manipulating its records, and even operating bank accounts, which is contrary to the
Rules and Regulations as well as constitution governing the society. On these averments, the
plaintiffs claim the reliefs sought in the suit. Consequential injunctions mandatory and perpetual
are sought to the effect that the elections held on 2-4-2007 are void and illegal.
3. The defendants had resisted the suit, contending that the second, third and fourth
defendants were validly inducted, and with full knowledge of the plaintiffs. It is submitted that
their induction was also intimated to the fifth defendant, i.e. the Registrar of Societies; a copy of
the return filed in this regard with the fifth defendant, is relied on. The written statement also
submits that the society was in need of money and security for the purpose of a land purchase
transaction, and received finance from a public sector bank. At that stage, the first and second
defendants granted personal guarantees for huge amounts. The second plaintiff is aware of these
and has at no stage disclaimed that the society is beneficiary of the said collateral security, for
purchase of land. In these circumstances, to say that the second, third and fourth defendants were
never made members is incorrect.
4. After summons were issued, and the pleadings were completed from time to time, the
Court considered submissions on 19th May, 2010, and disposed of the suit finally, recording as
follows:
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 2
"CS(OS) 2366/2007 and IA Nos 14578/2007 (under O.39 R.1 and 2 CPC),
1549/2010
(under Section 151 CPC by plaintiff), 1550/2010 (under Section 151 CPC by
plaintiff), 2372/2010 (under Section 151 CPC by defendant nos 1, 3 and 6)
It is an admitted fact that plaintiff no.1 which is an educational
society has, at the moment, 11 members. The list of members is indicated at
Page 51 of the documents filed by the plaintiffs. The objection of the
plaintiffs is to the persons whose names appear at Serial nos. 9, 10 and 11 in
the list set out at Page 51 (i.e., defendant nos. 2 to 4). It is also not
disputed by both counsels that elections to the society i.e., plaintiff no.1 are
now overdue since the term of the Governing Body ended in April, 2010. The
peculiarity of this case is that the members of the society whether they are 8
or 11 are also the persons who get appointed to various posts in the society.
The warring groups, i.e., the plaintiffs as well as the defendants are willing
to amicably settle the disputes on the following terms:-
(i) Fresh elections will be called within 15 days from today. The elections will
be held within 15 days thereafter.
(ii) Since there is no dispute as regards membership of plaintiff nos 2 to 4, it
is agreed that after the elections are held, plaintiff no.2 will be offered the
post of vice- president while plaintiff no.4 shall continue as member of the
governing body.
(iii) The elections shall proceed on the basis of the list of eleven (11)
members as set out at Page 51 of the documents.
(iv) The defendants shall give inspection of all documents and books of
plaintiff no. 1 on demand by plaintiff nos. 2 to 4.
Mr Garg, the learned counsel for the plaintiffs says that plaintiff nos 2
and 4 shall Stand for the post(s) which are being offered under this agreement.
The entire process shall be completed within six weeks from today.
Mr Garg says that in view of the terms of settlement as indicated
hereinabove, he does not wish to press the suit any further. The suit is
disposed of accordingly on the terms, indicated hereinabove. All the pending
applications are also stand disposed of."
5. It appears that after the suit was disposed of, an appeal was preferred before the Division
Bench, being RFA (OS) 58/2010, claiming that the order was passed upon the statement of
defendants' counsel, who had no instructions or authority in that regard. The appeal was
subsequently permitted to be withdrawn by the Division Bench on 02.07.2010. The Division
Bench, in its order listed the names of the successful candidates on the basis of the report of the
Local Commissioner appointed by the Court and also required that the report of that
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 3
Commissioner ought to be made available to this Court in the event the appellants/defendants
preferred a review petition.
6. In these circumstances, the second and fourth plaintiffs have filed a review petition, being
R.A. 9418/2010, along with an application for condoning the delay in filing it (I.A. No.
9419/2010), and an application for claiming interim directions (i.e. I.A. No. 9420/2010). The
review petitioners submit that they did not authorize their counsel to dispose of the suit in the
manner indicated in the order dated 09.05.2010. The petitioners contend that they were informed
by their counsel that while arguments were being addressed, the Court had enquired from
counsel for the parties whether the disputes could be amicably settled and in this background
some proposals and counter-proposals were exchanged. The review petitioners further state as
follows:
"XXXXXX XXXXXX XXXXXX
................It was further informed that all this while the Ld. Counsel appearing
for the plaintiffs was under an impression that this Hon'ble Court was merely
recording the proposals for arriving at an interim arrangement in the matter and
that the counsels would be granted time to put such proposals for consideration
before their respective clients.
5. That it was also informed that during the aforesaid process of recording
the broad proposals in the order, as soon as the Ld. Counsel for the plaintiffs
realized that this Hon'ble Court had proceeded to dispose off the entire suit
proceedings, he objected to the same but his objections were not taken note off by
this Hon'ble Court and he was advised to take appropriate legal remedies as may
be available under the law as the other had already been dictated.
XXXXXX XXXXXX XXXXXX"
7. The present review petition was filed on 16.07.2010. The defendants/review petitioners
also are now being represented by another counsel, Sh. Neeraj Grover; their instructions to the
counsel who was originally present in the Court on 19.05.2010, i.e. Sh. S.C. Garg has been
withdrawn. When the review petition, with the accompanying applications were placed before
the Court, Rajiv Shakdher, J who had disposed of the suit recorded, on 27.07.2010, in the light of
the submissions and averments made by the review petitioners, as follows:
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 4
"XXXXXX XXXXXX XXXXXX
On perusal of the application, I find that averments have been made in
Paragraphs 4 and 5 by which it is sought to contend, that the counsel for the
plaintiff who was then engaged in the matter was under the impression that an
interim arrangement was being made in the matter, and that as soon as the
learned counsel realized that the matter was being disposed of in its entirety,
"....he objected to the same but his objections were not taken note of by this
Hon'ble Court and he was advised to take appropriate legal remedies as may be
available under the law as the order had already being dictated....."
Ordinarily, as is the practice, a Review Application is heard by the Judge
who passed the original order. I would have done the same. However, in the
instant case, given the assertions made in Paragraphs 4 and 5, in my view, this
application ought to be heard by another Judge.
I may only record (since this information is not in the knowledge of Mr.
Neeraj Grover, Advocate who appears for the plaintiff presently) that on the date
when the suit was disposed of Mr. Shiv Charan Garg was present in Court with
another gentleman with whom he was consistently in confabulation. As a matter
of fact, when proposals and counter proposals were made, counsel for both
parties stepped out of the Court to consult. I had no reason to believe that the
plaintiff's counsel had no instructions in the matter. I do not wish to deliberate
any further on this aspect, as this is facet which, the judge dealing with this
application will perhaps allude to.
Consequently, the matter be placed before another Judge on 28.07.2010,
subject to the orders of Hon'ble Judge Incharge, Original Side.
XXXXXX XXXXXX XXXXXX"
8. In these circumstances, the review petition along with connected applications were placed
before this Bench, and arguments were eventually heard on behalf of the parties.
9. The review petitioners urge that by virtue of provisions contained in Order 23 Rule 3
CPC, this Court ought not to have recorded the compromise as it did by the order dated
19.05.2010. It is submitted that the order has the effect of completely foreclosing any
adjudication upon the issue of legality of the second to fourth defendants' membership in
the Society. Learned counsel emphasized that this Court, while disposing of the suit in its
entirety on 19.05.2010, was apparently under the impression that the relief of mandatory
injunction and other similar reliefs in respect of the election that took place in 2007 had
worked itself out and rendered infructuous in view of the directions to hold fresh
elections. Learned counsel argued that this impression is erroneous, as is apparent from
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 5
the face of the record because the plaintiffs' basic grievance was that the membership of
the second, third and fourth defendants was illegal, and that their participation in the
deliberations of the Governing Council or for that matter, their involvement in the
Society itself lacked legal sanction. Learned counsel relied upon the judgment of
Supreme Court reported as Gurpreet Singh v. Chatur Bhuj Goel AIR 1988 SC 400, and
argued that the provisions of Order 23 Rule 3 CPC are mandatory and do not admit of
any deviation or exception. If the Court has to record a compromise, the same has to be in
the form stipulated by those provisions or not at all. It is submitted that the subsequent
judgment of the Supreme Court reported as Pushpa Devi Bhagat (Dead) Through L.R.
Sadhna Rai (Smt) v. Rajinder Singh and Ors. 2006 (5) SCC 566 has also highlighted the
need to adhere to the standards prescribed by the provisions of the CPC.
10. The defendants submit that the review petition is misconceived and a clear afterthought.
It is submitted in this regard that not all the plaintiffs are parties to the review
proceedings, and have supported it. Learned counsel points out that the third plaintiff has
accepted the order of 19.05.2010. It is also stated that the second plaintiff, Sh. Sushil
Kumar Jain was aware of the order and in fact had written to the Election Officer
appointed by the Court on 04.06.2010, complaining that the nomination submitted by one
of the respondents/defendants, i.e. Smt. Rekha Jindal had to be verified vis-à-vis its
genuineness. The said letter has been placed on the record and reads as follows:
"XXXXXX XXXXXX XXXXXX
To,
Shri S.M. Aggarwal,
Kothi No. 15, Banarsi Dass Estate,
Timarpur, Delhi.
Dear Sir,
I, Sushil Jain, who submitted the nomination paper for the post of
President of the above named society on 01-06-2010 submit as follow for your
kind perusal.
That Smt. Rekha Jindal also submitted her nomination paper for the post
of President at about 5.00 P.M. on 02-06-2010. The signatories to Smt. Jindal's
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 6
nomination form are (i) Shri Kanak Mal Saklech and (ii) Shri Mahendra Pal Jain.
Both these persons live at a for distant place from Delhi.
In this context I am to state that I apprehend that the signatures of both
these persons, on the nomination form of Smt. Rekha Jindal do not seem to be
genuine, as these persons were not available at Delhi as per my information
during these two days i.e. on 1st & 2nd June 2010. I, therefore, request your
goodself to please verify the genuineness of the signatures of these two persons
from any authority as you find suitable for verification for your satisfaction and
for my satisfaction as well.
I shall be grateful if you could kindly spare some of your time in getting
the needful done at your earliest.
Thanking you an anticipation,
Yours truly,
Sd/-
(Sushil Jain)
B-270, Yojana Vihar,
Delhi-110092
9310050612
XXXXXX XXXXXX XXXXXX"
11. It is also submitted that the said Smt. Rekha Jindal's nomination was in fact rejected on
the ground that even though she held herself out as a candidate, at the same time she
seconded the nomination of the second plaintiff, which rendered her candidature invalid.
12. Learned counsel for the defendants argued that the pleadings on record also disclose that
the Society had to purchase some land and was in need of funds, and therefore,
approached the Punjab National Bank, Khanpur Branch for a loan of Rs. 10 crores.
Learned counsel further stated that both the first and second defendants had, at that time,
signed the bank documents and even provided the bank guarantee for return of the
advance. These clearly reveal that the said defendants, along with other contesting
defendants (Nos. 3 and 4) were at all material times acting as members of the Society and
the plaintiffs (including the review petitioners) were fully aware not only of their
induction but also had their assent. The defendants/opposite parties also point that the last
date for filing nomination was 02.06.2010 and the election was actually held on
13.06.2010. They argued that the whole idea of challenging the 19th May, 2010 order is a
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 7
deliberate and calculated move thought of after the election proceedings and results were
apparent.
13. The defendants lastly rely upon the reply to an RTI query given to them on 23.07.2010 by
the Public Information Officer (PIO) of this Court. It is submitted that the query pertained
to which persons had been issued with Passes for entering into the High Court compound
to attend the case on 19.05.2010. The reply to the query disclosed that the fourth plaintiff
had been issued a Pass. The relevant question and reply are extracted below:
"XXXXXX XXXXXX XXXXXX
SI. No. Questions Reply
1. Names, address and other details of the (1) Sh. P.P. Jain, S/o Late D.C.
persons in whose name Gate passes Jain, age-74 years, R/o Flat No. 10,
were issued for entering into the High Brotghers CGHS, 16, I.P. Extn.,
Court Compound in CS(OS) No. Delhi - 92.
2366/2007 (titled as Bhagwan Mahavir (2) Sh. Jogi Ram Jain, S/o K.L.
Education Vs. Rajesh Jindal), listed Jain, age-59 years, R/o 20/7, Shakti
before Hon'ble Mr. Justice Rajiv Nagar, Delhi;
Shakdhar (Court No. 20) at item No. 4, (3) Sh. Dinesh Kumar Jain, age
on 19.05.2010; 44 years, S/o Sh. Raj Kumar Jain,
r/o GPMCE, Budhpur, Delhi;
(4) Sh. Rajesh Mittal, age-46, S/o
Sh. Ishwar Chand Mittal, r/o
GPMCE, Budhpur, Delhi applied
for the visitors' passes for
appearance in Court No. 20, Item
No. 4 on 19.05.2010.
XXXXXX XXXXXX XXXXXX"
14. The circumstances of this case clearly point to the fact that the Court in fact went by the
statement of counsel, who were authorized to make submissions and if necessary, record
the concessions on behalf of their clients. Learned counsel relied upon the judgment
reported as D.P. Chadha v. T.N. Mishra AIR 2001 SC 457 and contended that it had
noticed the previous judgment, i.e. Byram Pestonji Gariwala v. Union Bank of India &
Ors. JT 1991 (4) SC 15 and also spoken about the implied authority of the counsel to
compromise or agree to the matter relating to the parties. The judgment of the D.P.
Chadha case (supra) pertinently reads as follows:
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 8
XXXXXX XXXXXX XXXXXX
"17. Byram Pestonji Gariwala Vs Union Bank of India & Ors. (1991) 4 JT (SC)
15: AIR 1991 SC2234 is an authority for the proposition that in spite of the 1976
Amendment in Order 23 Rule 3 of the CPC which requires 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 matters relating to the parties, was not taken away.
Neither the decision in Byram Pestonji Gariwala nor any other authority cited on
8.4.1994 before the trial court dispenses with the need of the agreement or
compromise being proved to the satisfaction of the court."
XXXXXX XXXXXX XXXXXX"
15. Learned counsel also relied upon the judgment of this Court in M/s. Archies Greetings &
Gifts Ltd. v. Garg Plastic AIR 2003 Delhi 468. In the said ruling, this Court had noted as
follows:
"XXXXXX XXXXXX XXXXXX
.........No doubt the judgments in Gurpreet Singh [AIR 1988 SC 400] (supra)
which is a judgment rendered by 2 Hon'ble Judges as well as Banwari Lal's
judgment {(supra) (of 2 Hon'ble Judges)} hold that when a compromise is entered
into during the hearing of a suit or appeal there is no reason why such a
compromise should not be reduced in writing and signed by the parties. However,
D.P. Chadha's case is a judgment of 3 Hon'ble Judges as contrasted with
Gurpreet Singh and Banwari Lal's cases which decisions were rendered by two
Hon'ble Judges and D.P. Chadha's case clearly explains Byram Pestonji
Goriwala's case (supra) and construes it to hold that in spite of the 1976
amendment to Order 23 Rule 3 requiring the agreement or compromise to be in
writing, the implied authority of counsel engaged is the thick of proceedings in
Court, to compromise or agree on matters relating to parties was not taken away.
I am fully bound by the view taken by three Hon'ble Judges in DP Chadha's case.
Consequently, the plea by Shri Tripathi that the view taken by the decision of the
Supreme Court in Gurpreet Singh's case lays down the correct interpretation of
Order 23 Rule 3 C.P.C. cannot prevail. I have no doubt that but for the judgment
of the Hon'ble Supreme Court in D.P. Chadha's case, the respondent/review
petitioner was fully entitled to succeed on the basis of Gurpreet singh's and
Banwari Lal's judgment.
XXXXXX XXXXXX XXXXXX"
16. The above discussion would reveal that the plaintiffs had sought for declaration and
permanent injunction that some of the defendants, i.e. Nos. 2 to 4 were not validly
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 9
inducted members and further that the election held in March-April 2007 was invalid.
Consequently they had alleged that the first defendant had usurped office and had no
lawful authority to hold himself out as President and the other defendants were likewise
to be restrained from representing that they were members of the Society. Crucially, the
plaintiffs had also sought for a mandatory injunction and other allied consequential reliefs
in respect of the elections and other actions taken pursuant to it after April 2007.
17. During the course of the proceedings, the Court noted on 19.05.2010 that the parties had
arrived at an arrangement which would finally end the suit. It proceeded to record the
terms of agreement which also included an arrangement for holding of elections in June
2010 under the supervision of an agreed Local Commissioner. The review petitioners do
not dispute or contest the appointment of the Local Commissioner. They, however, argue
that the recording of the order dated 19.05.2010 was without their consent and that, their
counsel had even protested about the disposal of the suit which was not recorded by the
Court.
18. This Court is mindful of the circumstance that not all the plaintiffs have preferred the
present review petition; it is supported by the affidavits of only the second and fourth
plaintiff. Their learned counsel did not dispute or call into question the argument by the
respondents/defendants that one of the plaintiffs, i.e. the fourth plaintiff was issued with a
Pass for attending the Court proceedings on 19.05.2010. However, he had submitted that
the said fourth plaintiff along did not have the authority to instruct the counsel and that at
the relevant time, he had gone outside the Court. Now this Court is of the opinion that if
these circumstances about one of the plaintiffs - who is now a review petitioner - having
attended the Court is correct, it was necessary for him to place all the circumstances on
the record. However, no such attempt has been made in the review petition. There is yet
one more important aspect which cannot be lost sight of. The counsel, who had appeared
and made submissions, recording his consent to the Court for the arrangement indicated
in the order dated 19.05.2010 which also disposed of the suit - i.e. Sh. S.C. Garg has not
filed his affidavit in support of the review petition. The review petitioners have also
withdrawn instructions from him lends an entirely different perspective to the
proceedings because this Court is called upon to judge or determine whether what was
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 10
recorded on 19.05.2010 was correctly done at the mere asking of a litigant. The least that
ought to have been done in the circumstances was to place the affidavit of the concerned
Advocate or counsel, who assisted or represented the party seeking the review - a
salutary procedure insisted upon by the Supreme Court in the judgment reported as State
of Maharashtra v. Ramdas Shrinivas Nayak & Anr. AIR 1982 SC 1249. So far as the
arguments made by the rival parties on the merits of the case are concerned, this Court is
of the opinion that the same are hardly relevant to adjudicate the review proceedings as
what is called into question is the correctness of the procedure adopted rather than the
merits of the order. This Court is not sitting in appeal as it were while exercising review
jurisdiction.
19. The plaintiffs/review petitioners had heavily relied upon the ruling in Gurpreet Singh
(supra) to contend that the provisions of Order 23 Rule 3 admit of no exception and that a
compromise between the parties has to conform to the letter, spirit and form indicated in
those provisions. Any decree or order made contrary to those provisions - regarding
compromise would not be binding and ought to be recalled or withdrawn. They had also
relied upon the ruling in Pushpa Devi Bhagat (supra).
20. Whilst there can be no two opinions about the effect of what was cited in the judgment in
Gurpreet Singh (supra), at the same time, this Court is mindful that the subsequent ruling
in D.P. Chadha (supra) was rendered by a larger Bench of three Judges. That three Judge
ruling had also taken note of the intervening decision in Byram Pestonji Gariwala
(supra) which indicated that the counsel's implied authority to compromise a dispute
comes in the thick of the proceedings and cannot be interfered with lightly. In the opinion
of this Court, the ruling in Pushpa Devi Bhagat (supra) does not in fact support the
plaintiffs/review petitioners' case; a careful reading of that decision in paras 24, 25
indicates that in fact the Court upheld the consent decree drawn by the Court below.
21. The judgment in Pushpa Devi Bhagat (supra) pertinently notes as follows:
"XXXXXX XXXXXX XXXXXX
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 11
......................The question whether 'signed by parties' would include signing by
the pleader was considered by this Court in Byram Pestonji Gariwala v. Union
Bank of India AIR 1991 SC 2234 with reference to Order 3 of CPC:
30. 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 matters exceed the subject matter of the suit. The relationship of
counsel and his party or the recognized 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 the present case. The legislature has not
evinced any intention to change the well recognized and universally
acclaimed common law tradition................
XXXXXX XXXXXX XXXXXX
38. Considering the traditionally recognized role of counsel in the
common law system, and the evil sought to be remedied by Parliament by
the C.P.C. (Amendment) Act, 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 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 duly authorized
agents.......
39. To insist upon the party himself personally signing the agreement or
compromise would often cause undue delay, loss and inconvenience,
especially in the case of non-resident persons. It has always been
universally understood that a party can always act by his duly authorized
representative. If a power-of-attorney holder can enter into an agreement
or compromise on behalf of his principal, so can counsel, possessed of the
requisite authorization by vakalatnama, act on behalf of his client.... 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."
[Emphasis supplied]
The above view was reiterated in Jineshwardas v. AIR 2003 SC 4596 . Therefore,
the words 'by parties' refer not only to parties in person, but their attorney
holders or duly authorized pleaders.
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 12
XXXXXX XXXXXX XXXXXX"
22. Before parting, it would be appropriate to extract the following observations of the
Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. AIR 1982 SC
1249:
"XXXXXX XXXXXX XXXXXX
"..........the Judges' record was conclusive. Neither lawyer nor litigant may claim
to contradict it, except before the Judge himself, but nowhere else. The court
could not launch into inquiry as to what transpired in the High Court.
The court is bound to accept the statement of the Judges recorded in their
judgment, as to what transpired in court. It cannot allow the statement of the
Judges to be contradicted by statements at the Bar or by affidavit and other
evidence. If the judges say in their judgment that something was done, said or
admitted before them, that has to be the last word on the subject. The principle is
well settled that statements of fact as to what transpired at the hearing, recorded
in the judgment of the court, are conclusive of the facts so stated and no one can
contradict such statements by affidavit or other evidence. If a party thinks that the
happenings in court have been wrongly recorded in a judgment, it is' incumbent,
upon the party, while the matter is still fresh in the minds of the Judges, to call
attention of the very judges who have made the record to the fact that the
statement made with regard to his conduct was a statement that had been made in
error. That is the only way to have the record corrected. If no such step is taken,
the matter must necessarily end there.
XXXXXX XXXXXX XXXXXX"
23. It has been noted that no attempt has been made by the plaintiffs - not all of whom have
supported the present review petition - to establish that what was recorded was without
authority of their counsel. The plaintiffs have calculatedly changed the counsel; their
previous counsel has not stepped forward and deposed or made any statement in support
of the averments in the review proceedings. Furthermore, the basis upon which the
review proceeding has been moved is without any formal foundation. In fact, the
averments made in paragraphs 4 and 5 of the review petition and apparently submissions
made before the Court on 27.07.2010 were of such nature and character as to
persuade the learned Judge who was hearing the petition, i.e. Rajiv Shakdher, J., not
to proceed with the matter and list it before the present Bench. This conduct of the review
petitioners cannot also be left without comment. The statements and submissions made
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 13
by the parties, and more importantly so by their counsel have to be made with
responsibility and with sense of propriety and not with a view to question institutional
integrity as has been attempted during the present petition.
24. The preceding discussion convinces this Court that the review petition and the allied
applications are neither legally sound nor are with any factual foundation. For these
reasons, the Review Petition, being R.A. No. 9418/2010 and applications, being I.A. Nos.
9419/2010 and 9420/2010 have to fail; they are accordingly dismissed.
S. RAVINDRA BHAT
(JUDGE)
February 03, 2011
'ajk'
R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 Page 14
