Manmohan Sarin, J.

1. Petitioner, by this review application, seeks review/recall of order dated 15.9.1997, by which the Civil Revision Petition No. 1041/96 and C.M. 4493/96 were disposed of. Pleadings in the review application were completed and case was adjourned from time to time to enable the parties to explore the feasibility of settlement, which did not fructify. Parties filed written synopsis and were also heard on 25.1.2002 and order was reserved.

2. Before considering the grounds on which the review of the order dated 15.9.1997, is sought, the factual matrix, as recorded in the impugned order, disposing of the civil revision, may be briefly noted.

3. Petitioner, an Advocate, is the landlord, who had filed the present civil revision petition against an order dated 8.10.1996, by which the suit filed by the petitioner under Section 6 of the Specific Relief Act for wrongful dis-possession had been dismissed by the Civil Judge. The petitioner landlord had earlier filed an eviction petition under Section 14(1)(a) of the Delhi Rent Control Act, (hereinafter referred to as DRC Act), which was disposed of on 23.7.1987, giving the benefit of Section 14(2) of the DRC Act to the tenant. The tenant/respondent defaulted in payment of rent. Petitioner filed an eviction petition, culminating in an order of eviction being passed. Petitioner filed an execution application bearing No. 61/92 and claims to have obtained possession in pursuance to the decree through the bailiff on 7.12.1992. Petitioner claims that respondent forcibly dis-possessed him by breaking locks, which led the petitioner to file the suit for wrongful dis-possession under Section 6 of the Specific Relief Act. The Civil Judge after recording evidence dismissed the said suit, which led to the filing of the present revision petition.

4. Respondent claims that he resisted the execution and filed objections in writing. Petitioner did not receive possession. It is claimed by the respondent that petitioner had fraudulently obtained an ex parte order of eviction. As noticed before, the petitioner finding himself not in possession, filed the suit for wrongful dis-possession under Section 6 of the Specific Relief Act. The Civil Judge reached the conclusion that possession had not been handed over by the bailiff to the petitioner. Hence suit for wrongful dis-possession was not maintainable. It may be noted that the respondent had also filed application under Order IX Rule 13, CPC for setting aside the ex parte decree

5. Petitioner predicament in the revision petition was the finding of the Civil Judge, holding that petitioner did not receive possession from the bailiff and hence the suit under Section 6 of the Specific Relief Act was not maintainable. While in the execution proceedings before the Additional Rent Controller, petitioner had admitted having received possession, thus, enable the respondent to raise objections on the maintainability of the execution application.

6. I have noticed the above circumstances somewhat in detail in view of some of the submissions raised by the respondent, opposing the review application on the ground of it being an abuse of legal process and not permitting a party to wriggle out of compromise, which had been duly arrived at before the Court.

During the course of arguments in the revision petition, Counsel for the parties agreed that petitioner would not oppose the respondents application under Order IX Rule 13, CPC for setting the ex parte decree before the Additional Rent Controller and that the said application itself be allowed by the Court in exercise of powers under Article 227 of the Constitution of India. Further, that respondent would not raise any objection to the maintainability of the eviction petition under the DRC Act on the ground of petitioner having pursued the remedy under Section 6 of Specific Relief Act. Further, respondent would not object to the proceedings under the DRC Act being barred by virtue of petitioners statement that he had received possession. The said settlement was recorded in the following terms in paras 7, 8 and 9 of the impugned order, which are reproduced for the facility of reference:

7. After some arguments, Counsel for the parties have agreed in principle before me that the petitioner would not oppose the application of the respondent for setting aside the ex parte decree moved under Order IX Rule 13, CPC, pending before the Additional Rent Controller and in fact it is submitted that the said application may be allowed by that Court in exercise of powers under Article 227 of the Constitution of India.

8. Counsel for the respondent also submits that he would not raise any objections to the maintainability of the petition under the Delhi Rent Control Act on the ground of the petitioner having pursued the remedy under Section 6 of the Specific Relief Act or raise the plea of the proceedings under the Delhi Rent Control Act being barred by virtue of the statement of the petitioner that he had received the possession. This is, however, subject to payment of costs of Rs. 5,000/- by the petitioner to the respondent.

9. In view of the foregoing, the application under Order IX Rule 13, CPC, moved by the respondent, pending before the Additional Rent Controller is allowed with the consent of the parties and the ex parte decree/order of eviction is set aside. Counsel for the respondent would not raise any objections to the maintainability of the proceedings under the Rent Control Act on the ground of the earlier execution application having been satisfied or the statement made by the petitioner in that regard.

7. Counsel for the parties attempted to address me on merits with regard to the eviction proceedings under Section 14 of DRC Act with a view to submit the unreasonableness and unjust conduct of either side. However, I need not advert on these aspects :

(i) The main submission of the learned Counsel for the petitioner seeking review/recall of the impugned order is that Counsel for the petitioner was authorised only to conduct the civil revision and had no authority whatsoever to make any concession with regard to allowing the application of the respondent under Order IX Rule 13, CPC and setting aside the ex parte decree obtained. Petitioners Counsel submits that evidence had already been led under Order IX Rule 13, CPC and there was no actual or implied authorization to the petitioners Counsel to make such concession. The proceedings under Order IX Rule 13, CPC were not the subject matter of the revision petition.

(ii) The next submission by Mr. Kanwal Narain and Mr. Amitabh Narain is that the impugned order, recording the compromise between the parties, is contrary to the provisions of Order XXIII Rule 3, CPC. The same has not been signed either by the parties or the Counsel and hence cannot be given effect to. Learned Counsel also relies on Section 141 of the Code of Civil Procedure to urge that the provisions of Order XXIII Rule 3, CPC would apply to all civil proceedings including proceedings under Order IX. The explanation only excluded proceedings under Article 226 of the Constitution of India. Hence any order that is sought to be passed dealing with civil proceedings in the nature of Order IX Rule 13 or for that matter by invoking Article 227 would also be governed by Order XXIII Rule 3, CPC. Learned Counsel for the parties also relied on the decision of the Supreme Court in Gurpreet Singh v. Chatur Bhuj Goel, reported at AIR 1988 Supreme Court 400, as also on the decision of the Division Bench of this Court in Kamla Devi and Others v. Prabhat Chand and Another, reported at 65 (1997) DLT 986 (DB), following the decision of Gurpreet Singh v. Chatur Bhuj Goel (supra).

(iii) Learned Counsel for the petitioner submitted that in the absence of written agreement or a compromise signed by the parties or their Counsel the impugned order was vitiated by an apparent error that is non-compliance with the mandatory provisions of Order XXIII Rule 3, CPC and could not be sustained. It was submitted that the Court, while hearing the revision petition could have either accepted the civil revision or dismissed the same. It was also urged that Counsel had no authority to make such a concession and the concession by the Counsel placed the petitioner in a worst position than even the order of dismissal of the civil revision. The said order resulted in the respondent getting status of a tenant after prolonged proceedings of eviction extending from 1987, thereby defeating the ends of justice.

It was argued that the said compromise, as recorded was not in the interest of the petitioner and the Counsel had no authority to do so.

8. Learned Counsel for the respondent has opposed the review application. As noted earlier, learned Counsel, Mr. Rajat Aneja urged that the ex parte decree was fraudulently obtained and petitioner had sought to fabricate evidence of his having obtained possession and then file a suit on the ground of wrongful dis-possession, which the Civil Judge dismissed.

Learned Counsel laid considerable emphasis on the fact that the petitioner, who is himself an Advocate was present on the day, when the compromise was recorded by his Counsel on his instructions even though his presence had inadvertently not been recorded in the order sheet. It was argued that the petitioner never denied his presence on the said date. Petitioners Counsel happened to be President of the Bar Association and petitioner was resorting to malpractices, by which he was seeking to wriggle out and resile from compromise entered into before the Court and recorded. This should not be permitted. Learned Counsel also attempted to argue that the case would not fall within the ambit of Order 47, CPC. Hence review would not be maintainable. He submitted that there was no apparent error. It was urged that the petitioner had failed to place on record any affidavit by his earlier Counsel to the effect that he was not instructed to make a statement on behalf of the petitioner. Learned Counsel urged that such actions were abuse of the legal process and ought to be deprecated. Learned Counsel also attempted to urge that Order XXIII Rule 3, CPC would not apply to revisional proceedings and further that there was no settlement or finality to the dispute. At best, it was a case of arrangement or adjustment and hence the dispute still existed between the parties. This was not a case of determination of the cause and hence strict compliance with Order XXIII Rule 3, CPC was not required. It was urged that the order passed was a fair and equitable one, also in exercise of powers under Article 227 of the Constitution of India. Learned Counsel for the respondent laid considerable emphasis on not permitting the petitioner to wriggle out of the compromise and abuse the legal process on account of non-compliance with the provisions of Order XXIII Rule 3, CPC. Learned Counsel sought to place reliance on Byram Pestonji Gariwala v. Union Bank of India and Others, reported AIR 1991 SC 2234 [LQ/SC/1991/496] , which considered the effect of 1996 amendment in Order XXIII Rule 3, CPC, upholding the implied authority of the Counsel to enter into a settlement on behalf of the parties. Reliance was also sought to be placed on Smt. Mohan Bai v. Jai Kishan and Others, where again it was held that Order XXIII Rule 3, CPC does not debar a Counsel from signing a compromise petition nor it interferes with his inherent right to enter into an agreement or compromise on behalf of the client and the Court can act on such compromise petition, which is signed by the Counsel for the parties and has not been signed by the parties personally.

9. I have heard Counsel for the parties, perused the pleadings as also the written submissions and the authorities cited. The position, which emerges is that the petitioners presence on the date, when the revision petition was disposed of, based on the agreement arrived at, has not been disputed. What is disputed is that the petitioners Counsel had no instructions to enter into the settlement, as recorded. The petitioners silence or inaction at that time has not been explained, possibly it brooks no explanation. There has been retributive justice inasmuch as during the course of these proceedings, progress of eviction proceedings have remained stayed and petitioner has not been able to achieve his objective of securing possession. This apart, the main stress of the learned Counsel for the petitioner has been that the compromise or settlement arrived at is in contravention of the provisions of Order XXIII Rule 3, CPC. I find merit in this submission. The proceedings in revision by virtue of Section 141, CPC are subject to the procedure as is applicable to a suit as far as it can be made applicable and has to be extended to any proceedings in civil jurisdiction. The explanation specifically includes proceedings under Order IX, CPC. It is not in dispute that in this case the settlement, as recorded and agreed to before the Court has not been signed either by the parties or their Counsel. Besides, while disposing of the revision petition, the Bench has also with the consent of the parties allowed the application under Order IX Rule 13, CPC and set aside the decree. Even if the revision was adjusted or disposed of by an existing arrangement and there was no final adjudication, the same cannot dilute the requirement of the compromise or arrangement being signed in writing by the parties. The judgments relied on by Counsel for the respondent are with regard to the authority of the Counsel to bind the party yet the requirement of the compromise being in writing and signed either by the Counsel or by the party is not done away with. The Supreme Court has specifically in Gurpreet Singh v. Chatur Bhuj Goel (supra), put the matter beyond any pale of doubt by observing as under:

Under Order 23 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.

The plea that the words in writing and signed by the parties qualify the words any lawful agreement or compromise appearing in the first part of the Rule which refers to an adjustment or settlement of the claim in suit by a lawful agreement or compromise outside the Court, meaning thereby that where the parties make a statement before the Court that the dispute between them has been settled on certain terms and the statements so made form part of the proceedings of the Court, there is no legal requirement to have an agreement in writing embodying the terms of the compromise, cannot be accepted. There is no justification to confine the applicability of the first part of Order 23 Rule 3 to a compromise effected out of Court. AIR 1983 Punj and Har 393, Overruled.

The Division Bench of this Court upheld the requirement of strict compliance with the Provisions of Order XXIII Rule 3, CPC. The Division Bench also considered the arguments as has been raised in the present case that it was grossly unfair to permit a party to wriggle out or resile to abuse the legal process by going back on the agreement reached before the Court. The Division Bench in Kamla Devi and Others v. Prabhat Chand and Another (supra), taking note of Gurpreet (supra), held in para 13 as under :

Appellants have argued that to allow a party to go back upon what he had orally agreed in open Court would be unjust and that strict compliance with Order 23 Rule 3 was not required. But then, the language of Order 23 Rule 3 is quite clear that the compromise must be in writing and signed. Further the facts in the judgment of Supreme Court in Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400 [LQ/SC/1987/860] , are almost similar and show that strict compliance with Order 23 Rule 3 is necessary. In that case too, before a Division Bench which heard the appeal, parties or Counsel made oral submissions on 28.1.1987 stating that the appeal could stand dismissed as respondent agreed to receive Rs. 2,25,000/- from appellant. The case was adjourned to 17.3.1987 to check if the money as agreed to on 28.1.987 was paid. But later the respondent went back, taking advantage of Order 23 Rule 3. Admittedly the compromise was not reduced to writing and signed by the parties. The respondent on February 9, 1987 made an application by which he tried to resile from the compromise. Therefore, on 17.3.1987, the Court directed the parties to argue the appeal. Appellant relied on Order 23 Rule 3 but the same was not accepted because the compromise was not in writing nor signed by parties. On further appeal to the Supreme Court, the same was dismissed holding that there was no written compromise signed by the parties as required by Order 23 Rule 3. The order in which the respective submission of the parties in relation to the compromise was recorded, was not sufficient. The judgment of the Supreme Court is directly on point and, therefore, we strictly require compliance of the strict language of Order 23 Rule 3, CPC.

10. In view of the foregoing discussion, the settlement recorded in the order dated 15.9.1997 having not been signed by either of the parties or the Counsel and not being in compliance with Order XXIII Rule 3, CPC cannot be sustained or enforced. Review application is allowed and order dated 15.9.1997 is recalled. No order as to costs.