P L D 1967 Dacca 155 (PLP)

ABDULLA, J.‑This First appeal is directed against the order refusing to record a compromise with regard to five items of properties. The plaintiff who is the appellant before us filed a suit in the 1st Court of the Subordinate Judge, Barisal for declaring that the disputed property enumerated in the Schedule attached to the pliant was Debuttar property and that the plaintiff was the shebait thereof. The defendant was the owner of the disputed property and the plaintiff alleged that the defendant a few days after Partition, dedicated the disputed property for the maintenance of the temples established by his predecessors and for the worship of the idols and it was settled that the defendant would execute a deed of Debuttar document as soon as possible. The defendant migrated to West Bengal and did not execute the deed of Debuttar on various pretexts and finally on 7‑12‑54, the defendant made it known that he would not be able to execute any document. The plaintiff finding it difficult to maintain the said Debuttar pro perty was compelled to institute the suit. The suit was filed on 13‑6‑

56. On 16‑7‑56 the defendant and plaintiff filed joint petition of compromise with regard to the 20 items of property of the Schedule to the plaint. On the same day, however, another petition was filed by a different lawyer challenging the genuineness of the petition of compromise and written statement was filed on behalf of the defendant. This objection was filed by one Akkel Ali Shikdar who claimed to be the Mokhtiar of the Defendant with regard to items 1 to 5 of the suit property by a power of attorney dated 18‑5‑

54. It was alleged by this Akkel Ali Shikdar that the idol goddess Kali was being worshipped by the officers of the defendant and that there was no occasion for creating any Debuttar property and that the plaintiff never performed any work as the shebait. Akkel Ali Shikdar further claimed that the defendant had, pursuant to an agreement, sold by a registered Kobala executed on 30‑12‑54 through the said Akkel Ali Shikdar all the town properties enumerated in items 1 to 5 of the Schedule to the plaint. Hence it was alleged that the petition of compromise was not a genuine document and had been secured by the plaintiff with a view to obtain a false declaratory decree in respect of Debuttar property in the absence and behind the knowledge of the defendant by suppressing the summons and getting a false return of service to be made by showing the defendant's present residence at Tehsil Kachari, Barisal. On 16‑7‑56 the learned Subordinate Judge considered the said petition of compromise, the petition of objection of Akkel . Ali and several other petitions filed by the parties and also by the transferees of the properties enumerated in Schedules 1 to 5 of the plaint. The learned Subordinate Judge finally considered two ques tions raised by the parties. First, whether the signature of the defendant should be examined by a handwriting expert and, secondly, whether the transferees should be made parties or not. With regard to the second question the learned Subordinate Judge at once held that impleading of the transferees in that suit was out of question and they could not in any case be legally affected as any decision in the suit would not be binding upon them. With regard to the first question the learned Subordinate Judge was of the opinion that the genuineness and otherwise of the signature in the petition of compromise would not be material if the power of attorney given by the defendant to Akkel Ali Shikdar was proved to be genuine. Hence he fixed 22‑9‑56 for admission of documents and arguments on the two questions, (a) whether Akkel Ali had from the defendant any power of attorney enabling him to sue and be sued on behalf of the defendant and if so (b) whether any such power had been subsequently duly revoked by the defendant or has expired by operation of law. The learned Subordinate Judge found that the power of attorney was a genuine document and consequently the defendant had no locus standi to enter into a compromise regarding properties Nos. 1 to 5 in which the defendant had no right or power of disposal as they had been already transferred by Akkel Ali when he was the authorised agent. The learned Subordinate Judge also found that Akkel Ali had no locus standi to file any written statement on behalf of the defendant with respect to properties Nos. 6 to 20 of the plaint and the Solenama. Hence the learned Subordinate Judge held that the compromise was unenforceable and unlawful with respect to properties Nos. 1 to 5 and must be recorded with respect to properties Nos. 6 to 20 only. The decree drawn up was to the following effect:‑ "This suit coming on this day for final disposal before Mr. M. A. Amin, Subordinate Judge, Barisal, in the presence of Babu Rakhal Chandra Sen, Pleader for the plaintiff and of Babu Monoranjan Saha, Pleader of the Defendant. It is ordered and decreed that the compromise be recorded with respect to properties Nos. 6 to 20 only of the Solenama and the suit be decreed in terms of the Solenama, which shall form part of the decree with respect to only pro perties Nos. 6 to 20 of the Schedule thereto. No order as to costs." The decree it appears does not contain any adjudication regarding properties Nos. 1 to

5. The plaintiff has filed this appeal against the said decree claiming that the compromise as a whole should have been recorded. It is claimed by the appellant that the written statement of Akkel Ali having been rejected there ought not to have been any variation in the terms of the Solenama. It was lastly argued that Akkel Ali had no locus standi to intervene in the suit. At the outset it must be observed that it would not be correct to say that Akkel Ali or the transferees had no locus standi in the suit. It is not denied that the power of Attorney in favour of Akkel Ali is a genuine document and it is also clear that the power of attorney was with respect to 5 items of the suit property and therefore, the Court under Order I, rule 10 had enough materials to hold that Akkel Ali and the transferees through him ought to have been joined as defendants as their presence before the Court was necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. But it does not appear either from the order sheet or from the decree that the said Akkel Ali was made , formally a party in the suit, although the Court has acted on the documents Exhs. A and B produced by the said Akkel Ali. As regard the transferees the Court has merely observed that their presence in this suit was out of question The next question is whether the Court acted legally in refusing to record the compromise with regard to items 1 to 5 of the Schedule to the plaint. Order XXIII, rule 3, reads as follows: 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 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 judgment in accordance therewith so far as it relates to the suit." It will be apparent from a plain reading of the above rule that once the conditions laid down in it are satisfied that is to say the Court is satisfied that the compromise is lawful it is mandatory upon the Court to record the compromise and to pass a decree in accordance with the compromise. It is further to be seen that the compromise may be with regard to the whole of the suit or any part thereof but the wordings do not indicate that the Court has power to record a portion of the compromise only rejecting the rest. When it is a case of compromise the question of adjudication does not arise. The compromise may itself relate to a part of the subject‑matter of the suit when the duty of the Court would be to record the compromise if lawful with regard to that part only of the subject‑matter of the suit. The Court itself cannot pick and choose regarding the items forming the subject‑matter of the compromise. Therefore in this case it was open to the Court either to accept the com promise as a whole or to reject the same as a whole finding that five items of the compromise were unenforceable and unlawful. But as sated above, before the Court is called upon to record a compromise it is incumbent on it to be satisfied that the suit has been adjusted by any lawful agreement. Admittedly the defendant is a rent‑receiver. On 2‑4‑56 by general notification all the acquirable properties of a rent‑receiver in the Province had vested in the Government with effect from 14‑4‑56 in accordance with the majority decision of the Special Bench of this High Court delivered in Writ Petition No. 146 of 1964, Chowdhury Tanbir Ahmad Siddiky v. The Province of East Pakistan. The present suit was instituted on 13‑6‑56 when the suit properties had already vested in the Government. In those circumstances the Government was a necessary party but admit tedly the Government was not made a party to this suit, It will therefore be a moot question whether the compromise entered into by the plaintiff or defendant would be lawful as apparently it was an attempt to defraud the Government in whom the properties bad vested in accordance with the said decision. Although the compromise decree would not have been binding on the Government yet in face of such a decree the Government could not have acted without taking steps to set aside the said decree leading to the starting of another long drawn proceeding. It is also not clear whether the provisions of section 9 of the State Acquisition Act were complied with regarding the transfer affected by Akkel Ali through his power of attorney. The decree also does not seem to be legal inasmuch as there is no adjudication with regard to items Nos. 1 to 5 of the pro perties though the decree appears to have been drawn up finally. The suit, it seems to us, has been disposed of without consi deration of the material points involved and we are not satisfied regarding the compromise recorded as being lawful. In our opinion, ends of justice require that the suit should be tried in the presence of all the necessary parties as indicated above. We accordingly allow the appeal, set aside the judgment and decree passed by the learned Subordinate Judge and remand the case for retrial before him after the impleading of the necessary parties as indicated above and after giving an opportunity to all the parties to adduce evidence both oral and documentary afresh. In the facts, and circumstances of the case we make no order as to costs. HASAN, J.‑I agree. S. Q. Case remanded.