Tara Singh vs Balwant Singh and others

B.B. Mahajan, F.C.

This is a review application praying for reviewing the orders passed by the leaned Financial Commissioner, Taxation dated the 20th October, 1977 in R.O.R. Nos. 41, 44, 45, 46 and 50 of 197677 and dated the 6th September, 1979 in R.O. Review Nos. 1 and 2 of 197778 respectively.

The brief facts of the case have been given in the reference made by the Commissioner, Jalandhar Division dated the 16th November, 1976 and need not be recapitulated here. The learned Financial Commissioner, Taxation vide his impugned orders dated the 20th October, 1977 dismissed the revision petition R.O.R. 41 OF 197677 filed by Bal Singhtenant, who died during the course of the proceedings and whose legal representativepetitioner numbers 3 to 7 were impleaded in his place. Revisions of the other petitioners were accepted in terms of the compromise between the parties. The terms of the compromise are mentioned in paras 3 and 4 of the impugned order dated the 20th October, 1977. The petitioners have filed a petition before the learned Financial Commissioner, Taxation for review of this order on the ground that the alleged compromise, if any, was illegal because it was not authorised by the petitioners and it went against the provisions of law. These review petitions were dismissed by the learned Financial Commissioner, Taxation vide his impugned order dated the 6th September, 1979. The petitioners thereupon filed a writ petition before the Hon''ble Mr. Justice I.S. Tiwana, who vide his judgment dated the 22nd January, 1981 dismissed the petition holding that he could not go into the disputed questions relating to the terms of the compromise in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The petitioners have thereafter filed a second review petition before my predecessor.

I have heard the counsel for the parties. The main grounds urged by the counsel for the petitioners in support of the review application are that :

(a) There is no power of attorney in the case, particularly R.O.R. No. 44 of 197677, Tara Singh v. Balwant Singh, on behalf of the petitioners and the alleged compromise is, therefore, not binding on the petitioners ;

(b) The alleged compromise is not legally in order as the provisions of Order XXIII Rule 3 of the Civil Procedure Code have not been complied with ; and

(c) The alleged compromise is against the provisions of law as laid down by the Hon''ble Supreme Court in the case of Rameshwar and others in 1975 PLJ page 454.

So far as the ground at (a) is concerned, the counsel for the respondents has pointed out that the impugned order of the learned Financial Commissioner, Taxation dated the 20th October, 1977 clearly shows that the counsel for the petitioners were present at the time of hearing. The ordersheet in that case shows that Shri Ravinder Seth had been appearing on various dates on behalf of the petitioners. It has not even been averred in the review application that the petitioners had not appointed Shri Ravinder Seth as their counsel. The mere absence of the power of attorney in favour of the counsel from the case file would not mean that the counsel was not representing the petitioners. He has also referred to the judgment of the Hon''ble Punjab and Haryana High Court in Suraj Bhan''s case in 1972 PLJ page 336 in which it was held that even if the power of compromise has not been conferred in the power of attorney an Advocate in India has got general power to compromise on behalf of his clients. The existence of the power of attorney is not, therefore, necessary to show that the counsel had the power to compromise on behalf of the petitioners and it was for them to show that they had issued any specific instructions prohibiting the counsel from compromising on their behalf.

In regard to ground (b) in para 3 above, the counsel for the petitioners has stated that under provisions of Order XXIII,Rule 3 Civil Procedure Code the Financial Commissioner, was required to have the alleged compromise recorded in writing and get it signed by the parties before acting on the same. In this connection he has referred to the judgment of the Hon''ble Andhra Pradesh High Court in the case of Kesarla Raghuram reported in AIR 1983 Andhra Pradesh Page 32 in which it was held that a compromise memo signed by pleaders of both parties but not by the parties cannot be acted upon. He has also referred to the judgment of the Hon''ble Punjab and Haryana High Court in Sucha Singh''s case reported in 1972 PLJ page 360 in which it was held (para 5) that a concession of the counsel on a point of law cannot be held to be finding on his client. In reply, the counsel for the respondents had pointed out that the provisions of Order XXIII Rule 3 Civil Procedure Code are not applicable to the present proceedings as the same has not been made applicable in the Rules framed under the Punjab Tenancy Act. Moreover, the compromise by the counsel before the Court is not required to be reduced to writing. In this connection he has referred to the judgment of the Division Bench of Hon''ble Punjab and Haryana High Court in Manohar Lal''s case reported in 1983 PLJ page 402 in which it was held (para 17) that the requirement of the document of compromise being in writing and signed by the parties is applicable only to an agreement of compromise for the adjustment of the suit under the first part of Rule 3 of Order 23 and that this requirement is not attracted to the satisfaction of the plaintiff by the defendant in respect of the whole or any part of subjectmatter of the suit under the second part of the said rule. He has also pointed out that the compromise recorded in the order of learned Financial Commissioner, Taxation dated the 20th October, 1977 is not a concession on question of law but about the partial satisfaction of the suit although it is based on the interpretation of law that on death of Dharit Ram his heirs have become small landowners.

In regard to ground (c) mentioned in para 3 above, the counsel for the petitioners has referred to the judgment of the Hon''ble Supreme Court of India in Rameshwar''s case reported in 1975 PLJ page 454 in which it was held that the right of the tenant to purchase land has to be determined on the date when he files an application and the subsequent event of the landowner''s death at the appellate stage does not unsettle the right acquired by the tenant on the date when application under section 18 of the Act was made. The counsel of the respondents has stated in reply that in the first instance, the impugned order of learned Financial Commissioner, Taxation dated the 20th October, 1977 is based on compromise and not on the alleged interpretation of law and, secondly even if it is held that it is based on wrong interpretation of law that itself would be no ground for review of that order. In this connection he has referred to the judgment of the Division Bench of the Hon''ble Punjab High Court in Balwant Singh''s case reported in 1966 PLJ page 76 in which it was held (para 8) that the Financial Commissioner could not review his order on the ground that he had taken a wrong view of the law and the proper remedy was by way of a writ petition to the High Court. In this case, writ petition had in fact been filed by the petitioners before the High Court but the same had been dismissed.

The counsel for the respondents has pointed out that under section 82(1)(b) of the Punjab Tenancy Act an application for review has to be filed within 90 days of the passing of the order sought to be reviewed. In this case, the application for review of order passed on the 20th October, 1977 had been filed on the 25th February, 1981 and no application had even been filed for condonation of delay. He has referred in this connection to the judgment of the Division Bench of the Hon''ble Punjab and Haryana High Court in Vashno Dass''s case reported in 1974 PLJ page 69 in which it was held (para 2) that in case an applicant seeks indulgence of the Court for extension of the time under section 5 of the Limitation Act, he has to explain each day''s delay. The counsel for the petitioners has stated in reply that there is no limitation of time for a suo motu review by the Financial Commissioner. In this connection he has referred to the judgment of Hon''ble Punjab and Haryana High Court in Harnek Singh''s case reported in 1967 PLJ page 140 in which it was held (para 6) that section 82 of the Punjab Tenancy Act does not fix any time for initiating review proceedings by a revenue officer on his own mention. The counsel for respondents has pointed out that in this case the petitioners had filed a review application and it could not be converted into a suo motu review.

The counsel for the respondents has also pointed that earlier review appliction against the same order on the same grounds had already been dismissed by my learned predecessor vide his order dated the 6th September, 1979. A further review application on the same ground was barred by principles of res judicata. He has also pointed out that under Order XLVII, Rule 9 Civil Procedure Code, no application to review an order made on the application for a review shall be entertained. The counsel for the petitioners has stated that the provision of this rule was not applicable to these proceedings as it has not been made applicable in the rules framed under the Punjab Tenancy Act and there was no such restriction in section 82 of the Punjab Tenancy Act.

The counsel for the respondents has also referred to the judgment of the Full Bench of Hon''ble Punjab and Haryana High Court in Manohar Lal''s case reported in 1983 PLJ page 402 in which it was held (para 20), following the judgment of the Supreme Court in AIR 1982 Supreme Court 1249, that the principle is well settled that statements of fact as to what transpired at the hearing recorded in the judgement of the Court are conclusive of the facts so stated and no one can contradict such statements by affidavits 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 mind of the judges to call the attention of 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. He pointed out that in this case the petitioners had challenged the correctness of the compromise as recorded in the impugned order dated the 20th October, 1977 before the same Financial Commissioner who had, however, rejected the review application vide his order dated the 6th September, 1979. The fact of the compromise cannot, therefore, be challenged now before me.

I have considered the matter carefully. There is considerable weight in the contention of the counsel for the respondents. The application for review has been filed long after the expiry of 90 days period allowed in section 82(1)(b) of the Punjab Tenancy Act. No application, whether written or oral, had been made for condonation of delay. The plea of the counsel for the petitioners that this may be treated as a case of suo motu review is obviously not tenable. Otherwise, the whole purpose of providing period of limitation for filing review application would be lost if applications filed after this period can be converted into cases of suo motu review. Further, since application for review of the impugned order dated the 20th October, 1977 filed by the same petitioners had already been dismissed by my learned predecessor vide his order dated the 6th September, 1979, his second application for review of the same order is obviously barred by the principles of res judicata. It is true that Order XLVII, Rule 9 Civil Procedure Code does not apply to these proceedings and an application to review an order made on the application for a review could probably be made. In this case, however,the application for review had been rejected and the present application is therefore not an application for review of an order passed after review of the same order dated the 20th October, 1977. Further, the petitioners were represented in the proceedings by the counsel which entered into the compromise. A pleader has a general power to compromise on behalf of his client and the mere absence of the power of authority in the case file in favour of the counsel for the petitioners would not invalidate the compromise made by him. The compromise was not required to be recorded in writing in view of the judgment in 1983 PLJ page 402. The provisions of Order XXIII, Rule 3, C.P.C. are also not applicable to these proceedings. In so far as the correctness of the record about the compromise is concerned, the application could be made only before the Financial Commissioner who had recorded the compromise in his order. This had in fact been done but the learned Financial Commissioner, Taxation rejected the application holding that the decision had been taken according to the compromise arrived at between the parties through their duty authorised counsel. This point cannot, therefore, now be agitated again before me.

Finally, the impugned order dated the 20th October, 1977 is based on a compromise and not an interpretation of law about the effect of death of the landowner during the pendency of the purchase application. However, even if it were so, error in interpretation of law should itself not provide a valid ground for review of the order. The application is accordingly rejected.