Delhi High Court
Gurbachan Singh Decd Thr Lrs & Ors vs Jagjit Singh Sawhney & Ors on 26 March, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:26.03.2012
+ CM(M) 1374/2010 and CM Nos. 19509/2010, 5534-35/2012 &
5660-61/2012
GURBACHAN SINGH DECD
THR LRS & ORS ..... Petitioners
Through Mr. Shashi Bhushan Jain, Adv.
versus
JAGJIT SINGH SAWHNEY & ORS ..... Respondents
Through Mr. V.K. Verma, Mr.Markandey,
and Mr. Y.R. Sharma, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. The delay in filing the reply is condoned.
2. The order impugned before this court is the order dated
03.09.2010; the application filed by the defendant under Order 23 Rule
3 of the Code of Civil Procedure (hereinafter referred to as the Code)
seeking the passing of a compromise decree had been declined.
3. Record shows that the present suit for possession and mesne
profits had been filed by the plaintiffs against the defendant; contention
was that the plaintiffs are the owners of the suit premises; the defendants
have unauthorisedly occupied the suit premises and are liable for
eviction. Suit for possession as also for damages for unauthorized use
and occupation had been filed. In the course of the proceedings on
17.09.2008 the parties had been referred for a settlement before the
Mediation Cell. On 21.10.2008, the Mediation Incharge Mr.O.P. Gupta
had recorded the discussion between the parties and it had noted as
follows:-
"After discussion the parties have reached at an amicable
settlement that the defendant will pay `11,000/- per sq. meter for the
area in his possession as well as superstructure. The plaintiffs would
execute a Sale deed in favour of LRs of defendant. The plaintiffs No. 1,
2 and 3 will executed a Sale deed in person and plaintiff No. 4 would
execute the sale deed through her attorney/mother/plaintiff No. 2. The
amount will be paid within 45 days. The house tax will be borne by
half and half by plaintiffs and LRs of the defendant.
The parties would appear before the concerned Court on
25.11.2008. The court concern will appoint a LC to inspect the site and
find out the area in occupation of each LRs of defendant. The expenses
of LC shall be borne half by plaintiffs and half by LRs of defendant.
After the payment is made and Sale deeds are executed, the plaintiffs
would withdraw the present suit for recovery of possession, mesne
profits/damages for use and occupation."
4. The next date fixed before the court was 25.11.2008 on which
date the plaintiffs had contended that since they were not present on
21.10.2008 and had not signed any settlement, they are not bound by the
settlement recorded on 21.10.2008; this submission of the plaintiff is
borne out form the record. The settlement noted before the mediator on
21.10.2008 had been signed only by Mr. Amit Singh Narang, advocate
of the plaintiffs but the plaintiffs had not signed the settlement. This
submission of the plaintiffs made before the Trial Court on 25.11.2008
found favour but in view of the submissions and counter submissions of
the parties, the matter was again referred for mediation for 04.12.2008.
On 05.12.2008, the court had been informed that no settlement has been
arrived at between the parties as the plaintiffs had disowned it.
Submission being that the plaintiffs had not signed this settlement.
Thereafter, an application under Order 23 Rule 3 of the Code had been
filed by the defendant seeking a decree on the aforenoted compromise
dated 21.10.2008. This had been declined by the impugned order and
rightly so.
5. Counsel for the petitioner has vehemently submitted that in view
of the judgment of Babhutmal Raichand Oswal vs. Laxmibai R. Tarte &
Anr. reported in AIR 1975 SC 1297, an Advocate is also authorized to
make a statement on behalf of his client and as such the compromise
arrived at between the parties was binding. This judgment is wholly
inapplicable to the facts of the present case since in this case a
compromise decree is yet to be passed; the matter was only pending
before the Mediator and the settlement arrived at between the parties on
21.10.2008 clearly shows that this settlement agreement was never
signed by the plaintiffs. In this background the impugned order has
correctly returned a finding that this settlement could not have been
converted into a decree and there was no compromise as right from the
inception of this so called settlement dated 21.10.2008 the submission
of the plaintiffs is that they had not signed this settlement on
21.10.2008; this is also evident from the subsequent order dated
25.11.2008. On 05.12.2008 which was the next date after the plaintiff
had clearly disowned the settlement, the contention was being reiterated
that they have never signed this settlement.
6. Their submission was evident that there was no agreement entered
into between the parties on 21.10.2008 which could culminate into a
compromise decree and this has been correctly appreciated by the
impugned order.
7. Section 89 A of the Code stipulates that the parties can be
relegated to mediation proceeding and where the mediator has settled
the substantial disputes between the parties; a decree shall be passed by
the court. In this case there was no compromise arrived at between the
parties; the compromise proceedings dated 21.10.2008 were never
signed by the plaintiffs. This is clear from the proceedings dated dated
21.10.2008; this has also been disputed by the plaintiff right from the
said date. In spite of this having been brought to the notice of the
learned counsel for the petitioner, he continued to vehemently argue on
this count.
8. Petition is without any merit; it is dismissed with costs of
Rs.10,000/-.
INDERMEET KAUR, J
MARCH 26, 2012
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