1. The reference has been made in a Letters Patent Appeal, against the order by our learned brother, Umamaheswaram, J., directing the lower appellate court to determine the merits of the appeal and the Memo of cross-objections filed in that Court.
2. The suit out of which the aforesaid appeal and the cross-objections have arisen was for a mandatory and a permanent injunction. The plaintiffs have claimed that there was a donka between their fields, shown as 'A' and 'B' in the sketch attached to the plaint and that of the 1st defendant shown as 'C' in the sketch and that the rain water from the defendant's as well as other fields towards the north used to flow through the donka towards the south, the donka having been marked as 'D', 'D-1', 'D-2' and 'D-3' in the, plaint sketch map. The plaintiffs' case further is that the Highways Department had laid a road in the middle of the donka, having on either side of the road a channel for rain water to flow from the adjoining field.
The next part of the plaintiffs' case is that the 1st defendant in collaboration with the 2nd defendant who is a maistri in the Highways Department, had cut the new road to the width of about five yards and had raised the height of the western bund in the 2nd plaintiff's field and also the level of his own land, so as to bring it on a level with the road. The plaintiffs complain that these acts have prevented the rain waters from flowing along with channel left by the Highways Department on the defendant's side of the new road and have caused diversion through the breach in the road, with the result that the entire water now rushes and enun-dates the plaintiffs' land.
3. They have therefore claimed a mandatory injunction to fill in the breach in the road, and to remove the bund raised on the 1st defendant's land. They have further asked for permanent injunction to restrain the 1st defendant from interfering with the flow of water in the canal along bis side of the field.
4. The written statement by this defendant is that the water from his land used to flow into the donka and thereafter through the kandakam situated between the lands of the two plaintiffs. It has been further pleaded therein that the Highways Department bad not due regular canals on either side of the road, and had failed to provide for the flow of the rain water from the neighbouring fields, which had caused the rain water to flow into the ditches and pits on either side of the road without any regular course. The next important averment in the written statement is that the Highways Department on representation had removed the earth put across the water course in the donka, placed earth to the east of the plaintiffs' land and also made the defendants' lands safe against enundation.
5. The District Munsif had framed three issues, the first being whether the plaintiffs were entitled to injunction, the next whether the suit was bad for non-joinder of parties and the third whether the 2nd defendant was a necessary party. Before the aforesaid Judge, on July 3, 1951 a joint memo was filed by the parties to the following effect:
'Both the plaintiffs and defendants agree to abide by the decision given by the Hon'ble Court based upon personal inspection of the suit locality and documentary evidence. Both parties agree not to adduce any oral evidence.'
6. In pursuance of this Memo the District Munsif inspected the locality in the presence of both the parties and their vakils on March 16, 1952, but the result of this inspection has not been reduced into writing and made part of the record. The documentary evidence on behalf of the plaintiffs is Ex. A. 1, which is the plan prepared by a Commissioner and Ex. A-2, the report by the same person.
The evidence on behalf of the 1st defendant consists of copies of several orders issued by the Divisional Engineer of Guntur and of the endorsement on the petition filed by the 1st defendant. Ex. B-6 is the report and Ex. B-7 is the plan prepared by the Commissioner on his behalf. Taking into consideration the aforesaid material and upon, his personal observation at the time of the local inspection the District Munsif has ordered the 1st defendant to remove the bund on his land, to prevent interference of the flow of water along the channel adjoining his land and not to allow more than half of the rain water to flow through the breach in the road.
7. Against the decree, the 1st defendant preferred the appeal and the ulaintiffs had also filed cross-objections aaaiust the refusal to fill the breach caused in the road. Before the lower appellate court a preliminary objection was taken about the appeal and the cross-objections not being maintainable on the basis of the joint Memo filed before the District Munsif. The lower appellate court has taken the view that because the parties had undertaken to abide by the decision given by the trial court they in the circumstances had given up their right of appeal against the judgment, which was in the nature of an award, and therefore neither the appeal nor the cross-objections were maintainable. The court has also found that there were no sufficient material on the record for deciding the appeal or cross-objections on merits, there being no notes of inspection available on record, and that in the face of the prior arrangement by the parties no further evidence were permissible. The court therefore dismissed the appeal and cross-objections.
8. Before Umamaheswaram, J. reliance was placed on Kotamma v. Mangamma, 1956 Andh LT 639 : (AIR 1957 Andh Pra 700), where Mr. Justice Viswanatha Sastry alter dealing with authorities and discussing the effects of a memo similar to the one in the present case has found the right of appeal not to have been taken away by the terms of the memo, nor the proceeding to be extra cursus curiae. Umamaheswaram, J. has found that the absence of the inspection note did not make any difference in legal principle, and has directed the remand, but he gave permission for the Letters Patent Appeal because of the conflict of authority on the point. The Bench hearing the appeal has accordingly referred the case to settle the conflict between Sankaranarayana v. Ramaswami, ILR 47 Mad. 39: (AIR 1923 Mad 444) and other decisions of the Court.
9. The first case relevant to the question before us is Sayad Zain v. Kalabhai, ILR 23 Bom. 752 where a money claim in a pending suit was left for the decision of the presiding Judge on the basis of his own information and the documentary evidence produced by the parties, the parties having agreed to abide by his decision. It was held that the decision by the Judge was in the nature of an arbitrator's award and therefore not open to appeal. I would next refer to Nidamarthi Mukkanti v. Thammana Ramayya, ILR 26 Mad. 76.
Here the plaintiff had claimed an order, directing the defendant to close a door-way, and the parties had jointly presented a petition requesting the Munsif to inspect the site, peruse the documents filed in the suit, and they had agreed to abide by the decision which the court might be pleased to pass as the final decision. The Munsif inspected the site and ultimately gave a decree in favour of the plaintiff, against which the defendant appealed. The lower appellate court held that an appeal lay and modified the decree and it was held by the High Court that the Munsif had acted as an arbitrator by consent of the parties and no appeal lay from his decision, which must be looked upon as an award.
In In Re: N. Peda Naganna, 26 Ind Cas 355 : (AIR 1915 Mad 1074) Sadasiva Aiyar, J. had held that an agreement not to appeal was binding between the parties, the consideration being the mutual consent to refer the matter in dispute to the court as an arbitrator.
The next case is Chengalraya Chetty v. Raghava Ramanuja Doss, 37 Mad. L.J. 100: (AIR 1919 Mad 150) where the terms of the agreement between the plaintiff and some of the defendants were that they should abide by any kind of decree made by a court after personal inspection of the place in dispute. The District Munsif dismissed the suit on mere inspection and the plaintiff appealed to the Sub Judge, who reversed the decision and remanded the whole suit for disposal according to law.
The learned Judges held in second appeal that the parties who had given the consent to the court itself acting as an arbitrator were barred afterwards from questioning the decision not by reason of the provisions relating to the arbitration awards to be found in Second schedule of the Code of Civil Procedure, 1908, but because they were bound by their agreement. They however held that as a remand of the suit against the non-consenting defendants might lead to two inconvenient decisions, the Sub Judge acted rightly in remanding the whole suit for trial. A different view was taken in ILR 47 Mad. 39: (AIR 1923 Mad 444) where the agreement between the plaintiff and two of the defendants was set out in an affidavit which runs as follows :
'We agree to the matter being decided according to the opinion which the court might entertain on the aforesaid local inspection without going into any further evidence.'
10. The plaintiff endorsed on that affidavit an agreement to abide by any decision which the court might arrive at after making the local inspection of the land and perusing certain plans and other records. The Munsif acted on the agreement, went to the place some seven miles and the judgment was given. There was an appeal and the Subordinate Judge following the Chetty's case, 37 Mad. L.J. 100 : (AIR 1919 Mad 150) held that no appeal lay. It was held that the appeal from the decision of the Court was maintainable and there was no waiver of such a right.
The learned Chief Justice who delivered the judgment in the case dissenting from the previous decisions of the High Court held that where the court had jurisdiction over a cause, mere agreement between the parties that the court might decide the cause disregarding rules of procedure and evidence without giving up a right of appeal either expressly or by necessary implication did not deprive the parties of their right of appeal. The proposition in such a wide form cannot be reconciled with the principles acted upon in Venkata Somayajulu v. A. Venkanna, ILR 58 Mad. 31: (AIR 1934 Mad. 397) that comes next in chronological order.
Here the plaintiff had claimed an easement of necessity in respect of certain lands and at the defendant's request the trial court had made a local inspection of the site. After the plaintiff had been examined and some documents were filed, the party requested the court to give a final decision without there being any necessity for examining further witnesses. They further agreed to be bound by the decision and to act according to it by giving full effect thereto.
The Munsif gave the decision partly in favour of the plaintiff and partly against him, and being dissatisfied with the judgment an appeal was filed before the Subordinate Judge, who held that by reason of the joint statement the plaintiff was debarred from filing the appeal. In second appeal it was held that the intention of the parties was to give up their right of appeal. In so deciding Venkata Subba Rao, J. held that if proceedings be extra cursus curiae the decision would be in the nature of a consent order and generally the right of appeal would be barred.
He further held that if the proceeding be not extra cursus curiae then unless there be a clear waiver of the right, the right of appeal would not be lost. I respectfully agree and think the aforesaid decision as stating the legal position correctly; but continuing with the cases, I now come to Kunjammal v. Rajagopal Iyer, 1948-2 Mad. LJ 291 : (AIR 1949 Mad 267). Here there was a suit for maintenance by a wife and a minor daughter against the husband, and the father, who had denied liability in his written statement; but agreed at the trial to give her such maintenance as might be fixed by the Judge.
It was held that no appeal lay, because there was no material on the strength of which the appellate court could safely come to a different conclusion from that of the trial court and because there was a compromise as to the procedure which left the court free to course the course though not in any sense judicial. It was also held that it would be a question of fact in each case whether the circumstances amount to a deviation more or less from the ordinary procedure, or whether the agreement between the parties be that the court should give a decision more in the nature of an award than an adjudication on the evidence in the case complete or incomplete.
The learned Judge said that the intention could only be ascertained by the events which happened in the particular case. . I now come to, 1956 Andh LT 639 : (AIR 1957 Andh Pra 700) where the learned Judge has reviewed all the case law. In the aforesaid case there was a suit for mandatory injunction against the defendant to remove certain bunds and for a permanent injunction restraining them from obstructing the flow of surplus water from the plaintiff's land. A Commissioner was appointed to inspect the locality, hut before the trial began the parties signed and filed a memorandum that they agree to abide by the decision of the court after personal inspection, that they were not adducing oral evidence and that the documentary evidence tan be received.
Mr. Justice Viswanatha Sastry of this Court in these circumstances held that the right to appeal is an important right which can only be given up by a clear agreement either in express terms or by necessary implication. He further held that the waiver of the right of appeal should be implied from the terms of the agreement, or should be gathered from their conduct as a question of fact in each particular case. The learned Judge therefore held that if the parties agree expressly or impliedly not to appeal from the decision of a court the agreement must cover the decision froth on facts and law. I would now refer to Guddappa Rai v. Ramanna Banta, : AIR1957Mad95 , where the contest in the suit for redemption of the mortgage was with regard to the value of improvements payable by the mortgagees.
The Commissioner had reported on these improvements and objections to the report had been filed both by the plaintiffs and some of the defendants. At that stage Advocates of the parties submitted a memo that they would abide by the court's decision on the issues raised, after local inspection and perusal of the documentary evidence in the case. The Sub Judge after inspection gave a decree in which among other things the value of improvements was fixed at Rs. 5,558-2-0.
In the appeal against the decree a preliminary objection was raised that no appeal lay and the learned Judges while upholding the objection decided that when the parties had agreed to abide by the decision of the court, their intention was to obey or to comply with it without questioning its correctness or validity. They further held that it was not open to anyone of them later to say that the decision was not binding and that the real position was that the Judge was made a quasi-arbitrator though not bound by any of the inhibitions of the Arbitration Act. The agreement in Satyanarayana v. G. Subbaiah, 1957-1 Andh WR 11, was in these terms :
'We agree to the matter being decided according to the opinion which the court might entertain on the aforesaid local inspection without going into any further evidence.'
Our learned brother Satyanarayana Raju, J. has held that the parties had no right of appeal by reason of the agreement contained in the joint memo.
11. In most of the aforesaid cases references have been made to Pisani v. Attorney General of Gibralter, (1874) 5 P.C. 516 and Burgress v. Morion, 1896 AC 136. The facts of Pisani's case, (1874) 5 PC 516 were that the Crown had sought to establish its right to certain lands, which originally belonged to a deceased woman, but were alleged to have been escheated. During the course of the trial the title of the Crown by escheat appeared unsustainable, but instead of dismissing the claim the court with the consent of the parties allowed an amendment of pleadings by the addition of a prayer that the rights of the several defendants might be ascertained and declared by the decree of the court. The court then enquired into the rival claim of the defendants and declared their respective rights. One of the defendants appealed to the Judicial Committee where a preliminary objection was taken as to the competency of the appeal. It was held that there was nothing in the proceeding suggesting that the parties have waived the right of appeal. In these circumstances it was observed:
'It is true that there was a deviation from the cursus curiae, but the Court had jurisdiction over the subject and the assumption of the duty of another tribunal is not involved in the question. Departures from ordinary practice by consent are of every day occurrence; but unless there is an attempt to give the court jurisdiction which it does not possess, or something occurs which is such a violent strain upon its procedure that it nuts it entirely out of its course so that a court of appeal cannot properly review the decision such departures have never been held to deprive either of the parties of the right of appeal.'
In Burgress's case, 1896 AC 136 there was departure from the English rule of procedure which did not permit use of a special case except for the purpose of obtaining the decision on questions of law arising upon the facts admitted; for the parties did not agree on the facts, vet admitted a special case, invited the Divisional Court to try questions of fact in dispute between them, and give a decision on their rights. The Court acceded to their request and gave a decision. The House of Lords held that the proceedings were not in ordinary course of law, but extra cursus curiae and that the decision of the Divisional Court should be regarded as being in the nature of an arbitrator's award from which no appeal lay. Lord Halsbury observed:
'Where with the acquiescence of both parties a Judge departs from the ordinary course of procedure and has, as in this case, decided upon a question of fact, it is incompetent for the parties afterwards to assume that they have an alternative mode of proceeding and to treat the matter as if it had been arrived in due course.
I am satisfied that if the parties had not agreed to take the decision of the Divisional Court upon the question of fact, that court would have refused to hear the case. The parties having done so, I think they are now precluded from treating the matter as subject to appeal.'
It is clear that some cases held the right to appeal to be lost only because the party appealing had expressly or impliedly waived the right. These decisions are open to the objection of paying inadequate attention to the decision of the trial court being extra cursus curiae. The deviation from the cur-sus curiae with the acquiescence of both parties may result in certain consequences. One such consequence, as Lord Halsbury had observed, is that the parties are precluded from subsequently treating the matter as though it had been arrived in the usual course.
The right to appeal would then be lost, not because of the express or implied agreement not to appeal, but because the parties to the proceeding cannot afterwards assume the alternative mode or procedure to be still open to them. The same result is reached according to the test laid in the Pisani's case, (1874) 5 PC 516; for where the agreement puts the original court so much out of its usual course as to prevent the appellate court from properly reviewing the decision the right to appeal would be lost as the reasonable consequence of the authorisation to adopt such a different course.
Therefore the only test for determining whether the right is lost to the party appealing should not be the agreement, express or implied, not to appeal. Where such an agreement exists the right is of course lost. On the other hand the enquiry in order to be complete should further ascertain whether the party adversely affected had acquiesced in the procedure that has put the court entirely out of its course and should such an acquiescence be proved the ground for the right to appeal being lost would be established.
Nor could the party adversely affected complain of any injustice; for having consented to the procedure he should abide by the inevitable consequences of such enquiry. Therefore the correct test for judging whether the right to appeal be lost is to ascertain what procedure the original court had followed because of the agreement. Should because of the agreement the procedure for reaching the decision be fundamentally different to that usually followed by Courts, the right of appeal would be lost. In 1956 Andh LT 639: (AIR 1957 Andh Pra 700) Mr. Justice Viswanatha Sastry has not adequately considered the observation in Pisani's case, (1874) 5 PC 516 concerning decisions extra cursus curiae not affording adequate material for the appellate court to properly exercise its power to review.
The same criticism could be justly offered against the view in ILR 47 Mad. 39: (AIR 1923 Mad 444) for without any express or implied surrender of right to appeal, the acquiescence of parties may put the trial court out of its usual course causing no material on record for proper exercise of appellate powers and giving parties to such a proceeding the right to appeal cannot he accepted as correctly following precedents. I therefore hold that the right of appeal would be lost where there be expressed or implied waiver of such right. Further if the decision appealed against be extra cursus Curiae, no appeal would lie provided the procedurefollowed by the original court results in consequences mentioned in the observation quoted fromPisani's case ((1874) 5 PC 516). This is my replyto the reference.