Physical Presence Of Parties Not Needed For Compromise Petition, Mutual Consent Divorce & Acceptance Of Sureties : Karnataka HC

Apart from this it was also held that conduct of the proceedings of the petitions filed under Section 13B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954, for divorce by mutual consent can be conducted via videoconference.

The court further laid down a procedure which can be followed for acceptance of sureties in compliance with the condition in the orders of the Criminal Courts.

A division bench of Chief Justice Abhay Oka and Justice S Vishwajith Shetty passed the order while hearing a suo-motu petition taken up to address various legal and technical issues that would arise during the partial functioning of courts which commenced from June 1.

In regards to Physical presence of the parties to a suit or proceedings in the civil court is mandatory, when the Court records compromise in accordance with the Rule 3 of Order XXIII of the Code of Civil Procedure, 1908 :

Amicus Curiae appointed by the court Senior Advocate Uday Holla, relying on three judgments passed by the Supreme Court in the case of Byram Pestonji Gariwala –vs- Union Bank of India and others, Pushpa Devi Bhagat (dead) through LR Sadhana Rai –vs Rajinder Singh and others and Deputy General Manager –vs- Kamappa to point out that "an Advocate appearing for a party is fully competent to put his signature on the terms of any compromise on behalf of his client.

The bench said "The conclusion which can be drawn from the aforesaid discussion is that the Advocates representing the parties have authority to sign the compromise petition on behalf of their clients and when the compromise petition is signed by the Advocates representing a parties to the suit, it complies with the statutory requirement in the provision of Rule 3 of Order XXIII of the said Code which requires a compromise petition to be signed by the parties."

Referring to Rule 4 of Order III, which provides that a pleader can act for any person in any Court, if he has been appointed for the purpose by such person by a document in writing signed by such person or his recognized agent or by his power of attorney holder, the court said :

"Thus, the law as it stands today is that an Advocate who is duly authorized by his client to enter into a compromise by signing the compromise petition or consent terms can sign the same for and on behalf of his client and it will be a perfectly valid compromise in accordance with the Rule 3 of Order XXIII of the said Code provided it is otherwise lawful. The authority can be in the form of a specific clause in vakalath or a specific authority in writing, signed by the client."

To an argument made that there are several instances where the compromise filed in civil suits or in appeals is challenged by the parties on the ground that a fraud has been played or that their signatures were obtained on the compromise petition without explaining the contents thereof.

The court said :

"We are discussing the question whether, in law, personal presence of the parties to the suit is mandatory when the consent terms/compromise petition signed by them and/or their respective Advocates is tendered by the Advocates before the Court to enable the Court to make enquiry and dispose of the suit in terms of the compromise. The answer to this legal question is clearly in the negative, in view of the law which is fairly well settled. The settled legal position cannot undergo a change merely because there is a possibility of unscrupulous litigants abusing the same."

As a precaution the court said :

"To avoid any allegations being made by the parties against their Advocates, it may be advisable for the Advocates to get the affidavits of the parties in support of compromise petition recording that the party has understood the contents of the compromise petition and that the party has voluntarily affixed/put his/or signature on the compromise petition."

If the court has a doubt on the genuineness of the settlement, the bench said,  "Court can always exercise its power under the proviso to Rule 1 of Order III and direct the parties to appear before the Court in person even through video conferencing. But the Court cannot insist on the personal appearance of the parties in every case."

As regards conduct of proceedings in case of divorce by mutual consent

The bench relied on the Supreme court judgments passed in the case of Sanathini –vs- Vijaya Venkatesh in which it observed that "Once the settlement or reconciliation fails, if both the parties give consent by filing a consent memorandum for hearing of the case through video conferencing and for examination of a witness by video conferencing, the Family Court can take recourse to videoconferencing."

It added that "As far as the procedure for recording of evidence is concerned, the Family Courts can always follow the provisions of the Rules framed by the High Court for videoconferencing hearings. Even the identity of the parties deposing by video conferencing can be established in the manner laid down in the said Video Conferencing Hearing Rules framed by the High Court."

Acceptance of sureties in criminal cases with the condition in the orders of the Criminal Courts, enlarging the accused on bail :

The court laid down the following procedure :

#Advocate representing the accused can produce the bail bond signed by the surety in prescribed form along with an affidavit of the surety. Along with the bond and affidavit, true copies of the authentic documents of identity such as PAN, Aadhar etc., and documents of address proof as well as the documents showing the property details held by him shall also be produced. The documents shall be self-attested by the surety and his signature shall be identified by the Advocate for the accused.

#The Advocate will have to identify the signature of the surety by signing below the signature of the surety and the concerned Advocate shall mention his registration/enrolment number issued by the Karnataka Bar Council below his signature.

#A recent photograph of the surety shall be affixed on the affidavit and the bond. The affidavit shall bear the signature of the Advocate for the accused recording that he identifies the surety.

#In a given case, the jurisdictional Court can call upon the Advocate to produce the original documents of which the self-attested copies are furnished for the purposes of verification. The jurisdictional Magistrate may himself verify the documents or get the documents verified by the Court officials.

#The affidavit of the surety must contain a statement on oath regarding the description of the property possessed by him, its value etc. A statement recording the correctness of the documents produced along with the affidavit must be incorporated in the affidavit. There shall be a statement in the affidavit to the effect that the person executing the affidavit has signed the surety bond.

#After the aforesaid formalities are completed, the jurisdictional Court may make an enquiry as contemplated by sub-section (4) of Section 441 and will decide whether the surety is fit and/or sufficient.

#For holding enquiry as contemplated in sub-section (4) of Section 441 of Cr.P.C, personal/physical presence of the surety is not mandatory. However, if the Court entertains any serious doubt about the identity of the surety or the genuineness of the documents produced along with the bond and affidavit, the Court can procure the attendance of the surety by video conferencing. The identity of the surety can be verified as laid down in the Video Conference Hearing Rules framed by this Court.

#Only after satisfaction is recorded after holding an enquiry as contemplated by sub-section (4) of Section 441 that the person in whose favour bail is granted can be released in accordance with Section 442 of Cr.P.C. The accused can be released on bail only after the Court holds an enquiry under sub-section (4) of Section 441 of Cr.P.C and accepts the surety.

#Before passing an order after holding enquiry under sub-section (4) of Section 441, the Court must ensure that a declaration on oath in accordance with Section 441-A is furnished by the surety.

The bench concluded by saying "During the present period of pandemic of COVID19, when there is an embargo on entry of litigants and the other persons other than the Advocates to the Court complexes, the procedure, as indicated above can be followed for the acceptance of sureties."