Powers of Courts under Section 319 of the Criminal Procedure Code

Justice R.M. Lodha
Supreme Court of India

The Supreme Court in Sarojben Ashwinkumar Shah v. State of Gujarat & Anr. has examined the provisions of Section 319 of the Criminal Procedure Code relating to the power of the court to prosecute any person, not being an accused, if evidence seems to suggest that such person has committed an offense. The relevant extracts from the judgment are reproduced hereinbelow;

7. Section 319 of the Code reads as under : 

S. 319. Power to proceed against other persons appearing to be guilty of offence.--(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of' the case may require, for the purpose aforesaid. 

(3) Any person attending the court although not under arrest or upon a summons, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the court proceeds against any person under sub-section (1), then-

(a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard: (b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.

8. The ambit and scope of the power of the Court under Section 319 of the Code has come up for consideration before this Court on more than one occasion.

9. In Joginder Singh and Another v. State of Punjab and Another, this Court stated that the power conferred under Section 319(1) of the Code is applicable to all courts including a Sessions Court and the Court has power to add any person, not being the accused before it, against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.

10. In the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Others, this Court (at page 8) held as under : 

19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondents 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.

11. In Michael Machado and Another v. Central Bureau of Investigation and Another, this Court on extensive consideration of the provision contained in Section 319 stated the (at pages 267-268) as follows :

11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the court is only a discretion as could be discerned from the words the court may proceed against such person. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that other person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the court to proceed against other persons. 

14. The court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly-added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action.

12. In Shashikant Singh v. Tarkeshwar Singh and Another, this Court considered the scope of Section 319 of the Code at page 743 of the Report in the following words: 

9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words could be tried together with the accused in Section 319(1), appear to be only directory. Could be cannot under these circumstances be held to be must be. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court.

13. In Krishnappa v. State of Karnataka, this Court reiterated what has been repeatedly stated that the power to summon an accused is an extraordinary power conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

14. In Palanisamy Gounder and Another v. State represented by Inspector of Police, this Court referred to two earlier decisions of this Court in Michael Machado and Krishnappa and observed that power under Section 319 of the Code cannot be exercised so as to conduct a fishing inquiry.

15. In Guriya alias Tabassum Tauquir and Others v. State of Bihar and Another most of the above decisions were referred to and it was observed that the parameters for dealing with an application under Section 319 of the Code have been laid down in these cases.

16. The legal position that can be culled out from the material provisions of Section 319 of the Code and the decided cases of this Court is this :

(i) The Court can exercise the power conferred on it under Section 319 of the Code suo motu or on an application by someone.

(ii) The power conferred under Section 319(1) applies to all courts including the Sessions Court.

(iii) The phrase any person not being the accused occurring in Section 319 does not exclude from its operation an accused who has been released by the police under Section 169 of the Code and has been shown in Column 2 of the charge-sheet. In other words, the said expression covers any person who is not being tried already by the court and would include person or persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the court.

(iv) The power to proceed against any person, not being the accused before the court, must be exercised only where there appears during inquiry or trial sufficient evidence indicating his involvement in the offence as an accused and not otherwise. The word `evidence' in Section 319 contemplates the evidence of witnesses given in court in the inquiry or trial. The court cannot add persons as accused on the basis of materials available in the charge- sheet or the case diary but must be based on the evidence adduced before it. In other words, the court must be satisfied that a case for addition of persons as accused, not being the accused before it, has been made out on the additional evidence let in before it.

(v) The power conferred upon the court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the court is not enough. The Court must also be satisfied that circumstances justify and warrant that other person be tried with the already arraigned accused.

(vi) The court while exercising its power under Section 319 of the Code must keep in view full conspectus of the case including the stage at which the trial has proceeded already and the quantum of evidence collected till then. (vii) Regard must also be had by the court to the constraints imposed in Section 319 (4) that proceedings in respect of newly - added persons shall be commenced afresh from the beginning of the trial.

(viii) The court must, therefore, appropriately consider the above aspects and then exercise its judicial discretion.

Doctrine of Lis Pendens and Effective Date : The Law

Justice P. Sathasivam
Supreme Court of India

The Bench comprising Justice P. Sathasivam and Justice B.S. Chauhan, in Har Narain (D) By LRs v. Mam Chand (D) By LRs, has explained the concept of Lis Pendens, embodied in Section 52 of the Transfer of Property Act, 1882, which provides that during the pendency of a lis, in which any right to immovable property in is question, the property cannot be transferred by any party to the suit so as to affect the rights of other parties. Lis pendens literary means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power or control which a Court acquires over property involved in a suit pending the continuance of the action and until final judgment thereunder.

Lis pendens is based on the doctrine of expediency but for this it would be impossible for an action to be brought to a successful termination if crafty defendants alienate the suit property before judgment and the plaintiff is driven to commence de novo proceedings, public policy requires sanctity qua judicial proceedings to be maintained. It is immaterial whether the alienee pendente lite had or had no notice of the pending proceedings (Rappal v. Gopal AIR 1970 Kerala 180).

In the decision reported as 1972 (2) SCC 200 Jaya Ram Mudaliar vs. Ayya Swami and Ors. the scope of lis pendens was explained as under:- “Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject matter of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the Court to deal with it and thus make the proceedings infructuous.”

In decision reported as AIR 1973 SC 2537 : Rajender Singh and Ors. vs. Santa Singh and Ors., referring to the doctrine of lis pendens it was observed as under:- 

“15. The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated. (Emphasis supplied)”

The question that arose for the Court's consideration, in the present case, was the 'effective date' from which the Doctrine of Lis Pendens was to apply; whether it was the date of execution of the sale deed or was it the date of registration of the document? The Supreme Court while reversing the Judgment of the Trial court held that;

"The basic questions arise as to whether in the fact- situation of this case, the sale deed executed by the respondent No.1 in favour of respondent nos.2 to 6 could be subject to the doctrine of lis pendens and in case the appellant had been in possession of the suit land being mortgagee since 1970, the respondent nos.2 to 6 can be held to be vendees without notice of an agreement to sell in favour of the appellant by the respondent no.1.

8. All the courts below have proceeded on the presumption that as the registration of a document relates back to the date of execution and in the instant case though the registration was subsequent to institution of the suit, it would relate back to the execution of the deed and the doctrine of lis pendens would not apply. Further, without considering the fact that the appellant had been in possession of the suit land since 1970, though, this fact had been mentioned in the sale deed in favour of respondent nos.2 to 6 by the respondent No.1 whether it could be held that they were not put to notice of the fact that the appellant had some interest in the property and whether in such fact- situation the respondent nos.2 to 6 may be entitled for benefit of the provisions of Section 19 of the Act, 1963.

9. Section 54 of the Act, 1882, mandatorily requires that the sale of any immovable property of the value of hundred rupees and upward can be made only by a registered instrument. Section 47 of the Act, 1908, provides that registration of the document shall relate back to the date of the execution of the document. Thus, the aforesaid two provisions make it crystal clear that sale deed in question requires registration. Even if registration had been done subsequent to the filing of Suit, it related back to the date of execution of the sale deed, which was prior to institution of the Suit. A similar issue though in a case of right of pre-emption was considered by the Constitution Bench of this Court in Ram Saran Lall & Ors. v. Mst. Domini Kuer & Ors., AIR 1961 SC 1747, by the majority of 3:2, the Court came to the conclusion that as the mere execution of the sale deed could not make the same effective and registration thereof was necessary, it was of no consequence unless the registration was made. Thus, in spite of the fact that the Act, 1908, could relate back to the date of execution in view of provisions of Section 47 of the Act, 1908, the sale could not be given effect to prior to registration. However, as the sale was not complete until the registration of instrument of sale is complete, it was not completed prior to the date of its registration. The court held:

"Section 47 of the Registration Act does not, however, say when sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore, nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore, we do not think that the sale in this case can be said, in view of Section 47 to have been completed on January 31, 1946." (Emphasis added).

10. This view has subsequently been followed and approved by this Court as is evident from the judgments in Hiralal Agrawal Etc. v. Rampadarath Singh & Ors. Etc., AIR 1969 SC 244; S.K. Mohammad Rafiq (Dead) by LRs. V. Khalilul Rehmad & Anr. Etc., AIR 1972 SC 2162; Thakur Kishan Singh (Dead) v. Arvind Kumar, 11 AIR 1995 SC 73; and Chandrika Singh (Dead) by LRs. V. Arvind Kumar Singh (Dead) by LRs. & Ors., AIR 2006 SCC 2199.

11. However, all these cases are related to right to pre- emption though the legal issue involved therein remained the same. In view of the above, we are of the considered opinion that in spite of the fact that the registration of the sale deed would relate back to the date of execution, the sale can not be termed as complete until its registration and it becomes effective only once it stands registered. Thus, the fiction created by Section 47 of the Act, 1908, does not come into play before the actual registration of the document takes place.

12. In Guruswamy Nadar v. P. Lakshmi Ammal (Dead) Through LRs. & Ors., (2008) 5 SCC 796, this Court dealt with a similar issue and considered the effect of doctrine of lis pendens and the provisions of Section 19(b) of the Act, 1963. Facts of the said case had been that an agreement to sell stood executed between the first purchaser and owner of the land on 4th July, 1974 for a sum of Rs.30,000/- and a sum of Rs.5,000/- was given as advance. The remaining amount was to be paid before 31st July, 1974. As the said amount was not paid, the owner again sold the suit property to another party (appellant) on 5th May, 1975 for a sum of Rs.45,000/- and possession of the suit property was handed over to the appellant therein. Thus, the first purchaser filed the suit for enforcement of the specific performance of the contract. The trial court dismissed the Suit holding that the agreement was genuine and appellant was a bona fide purchaser for value paid in good faith, without notice of the earlier agreement, therefore, no decree for specific performance could be passed in favour of the plaintiff therein. The First Appellate Court reversed the said judgment and decree. The Second Appeal was dismissed by the High Court. This Court considered the provisions of Section 52 of the Act, 1882, and Section 19 (b) of the Act, 1963, and held that as the subsequent sale was subsequent to the filing of the Suit, Section 19(b) of the Act 1963 read with Section 52 of the Act, 1882, could not grant any benefit to the subsequent purchaser and the subsequent sale was subject to the doctrine of lis pendens. Second sale could not have the overriding effect on the first sale. The Court held as under: "So far as the present case is concerned, it is apparent that the appellant who is a subsequent purchaser of the same property, has purchased in good faith but the principle of lis pendens will certainly be applicable to the present case notwithstanding the fact that under Section 19(b) of the Specific Relief Act his right could be protected."

13. In view of the above, it is evident that doctrine of lis pendens would apply in the present case as the registration of the sale deed was subsequent to filing of the Suit and subsequent purchasers i.e. respondent Nos. 2 to 6 cannot claim benefit of the provisions of Section 19(b) of the Act, 1963.

Maintainability of Review Petition When Special Leave Petition Dismissed : The Law

Justice P. Sathasivam
Supreme Court of India

The Supreme Court in Bakshi Dev Raj Vs. Sudhir Kumar has examined the law relating to maintainability of a Review Petition in cases where a party has preferred an Special Leave Petition, at the first instance and the same was subsequently dismissed. Under the Code of Civil Procedure, a review is not maintainable when the party prefers an appeal against an order of the Court. The question raised in the present case was whether a review petition would lie, before the concerned Court, once a Special Leave Petition has been dismissed as withdrawn before the Supreme Court. The relevant extracts of the judgment are reproduced hereinbelow;

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 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 Court after hearing the counsel for the appellants passed the following order: "Learned counsel for the petitioner prays to withdraw the 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 withdrawn. It is also clear that there is no permission or 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 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 the petitioner disentitling him to any indulgence by the court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are -- "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 CPC or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 CPC act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of a special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction 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 Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal. 

(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. 

(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. 

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. 

(vi) Once leave to appeal has been 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, remedy under Article 226/227 should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition and it would not be open to him to file a fresh petition in the High Court under the same article though other remedies like suit or writ petition before the this Court under Article 32 would remain open to him. It was further held that the principle underlying Rule 1 of Order XXIII of CPC should be extended in the interests of administration of justice to cases of withdrawal of writ petition also. The main contention urged by the learned counsel for the petitioner in that case was that the High Court was in error in rejecting the writ petition on the ground that the petitioner had withdrawn the earlier writ petition in which he had questioned the order passed by the Tribunal on 04.10.1985 without the permission of the High Court to file a fresh petition. It was urged by the learned counsel that since the High Court had not decided the earlier petition on merits but only had permitted the petitioner to withdraw the petition, the withdrawal of the said earlier petition could not have been treated as a bar to the subsequent writ petition. While considering the said question, this Court considered sub-rule 3 of Rule 1 of Order 23 CPC and its applicability to writ petitions filed under Article 226/227 and held as under: 

"9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh 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 without reasons, the aggrieved party is entitled to file a review. In view of the language used in Order XLVII Rule 1(a) of CPC which relates to "Review", the present Review Petition (C) No. D-5/2008) cannot be dismissed on the ground of maintainability.

Related Post(s):

"Doctrine of Merger : Supreme Court Explains"

The Bench comprising Justice Thomas, Justice Mohapatra and Justice R.C. Lahoti have explained the Doctrine of Merger. The Bench speaking through Justice Lahoti has examined the various judicial pronouncements on the doctrine and has formulated the various principles  regarding the same. The Bench has also examined the effect of the dismissal of an SLP, in limine, and whether the same precludes the rights of a party to agitate an issue in subsequent proceedings.

Click here to read entire Post.

Compromise between Parties & the Role of Counsels : Supreme Court Explains

Justice P. Sathasivam
Supreme Court of India

The Supreme Court in Bakshi Dev Raj Vs. Sudhir Kumar has examined the Role of Counsels and their power to make concessions in Court to withdraw or compromise claims / proceedings on behalf of their respective Clients. The Court, in the present judgment, has also examined the provisions of Order XXIII of the Code of Civil Procedure with regard to compromise of suit, and discussed the power of advocates / pleaders to act on behalf of their clients in such situations. The relevant paragraphs from the judgment are reproduced hereunder;

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 voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule." 

9. The very same rule was considered by this Court in 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 referred to as "the IPC"), after he had served the respondent with a notice dated 11.07.1979 forfeiting the amount of Rs.40,000/- 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 appellant, then a minor, and the respondent, for the sale of residential house No. 1577, Sector-18- D, Chandigarh for a 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 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 conveyance was to be executed. The dispute between the parties was that according to Colonel Sukhdev Singh, there 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. 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 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 special leave. While construing Order XXIII 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 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 (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 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 recorded and the matter was adjourned for payment in terms of the offer. When the matter was taken up on the next date of 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 proposed compromise. The said order was challenged before this Court by the appellant by contending that the matter was 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 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 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 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 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 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 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: 

"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 undue delay. In 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 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. 

38. Considering the traditionally recognised 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 authorised agents. Any such presumption would be inconsistent with the legislative 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 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 authorised 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 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 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 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 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 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: 

"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 conclusions either agreeing or disagreeing with it. We find no force in the contention. Order III 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 to pass a reasoned order on merits against the decree 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 co-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 Court has the power to dismiss the appeal as withdrawn without 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 III Rule 4 CPC. 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 and the procedure 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 reliance on the fact that the first appellant was bedridden and hospitalized, hence, he could not 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 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 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 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.