Skip to content


S.E. Makudam Mohammad Vs. T.V. Mohammad Sheikh Abdul Kadir and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1936)71MLJ281
AppellantS.E. Makudam Mohammad
RespondentT.V. Mohammad Sheikh Abdul Kadir and anr.
Cases ReferredBurgess v. Morton
Excerpt:
- - 6. a good deal of argument has been addressed in this appeal to show that the joint endorsement amounts to an adjustment of the suit within the meaning of order 23, rule 3, civil procedure code......recorded in the suit. this application by the second defendant was dismissed and the plaintiff's suit was decreed with costs as against the second defendant.5. the second defendant appealed to the subordinate judge and in appeal the learned subordinate judge was of opinion that the district munsiff was not justified in decreeing the suit on the strength of the joint endorsement made on the plaint by the parties and that he should have decided the suit in-the light of the evidence recorded in the suit. he accordingly set aside the decree of the district munsiff and remanded the suit for fresh disposal. the present appeal is from this order of remand.6. a good deal of argument has been addressed in this appeal to show that the joint endorsement amounts to an adjustment of the suit within.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the Principal Subordinate Judge of Tinnevelly dated 20th February, 1934, reversing in appeal the decree of the District Munsif of Tinnevelly dated 27th January, 1933, in O.S. No. 279 of 1931 and remanding that suit for fresh disposal in the light of the observations made by him. The suit was one for a declaration of the plaintiff's exclusive title to a house and for cancellation of the entry of the second defendant's name in the house-tax-payment register of the Union Board as the joint owner of the house along with the plaintiff and also for a mandatory injunction directing the President of the Union Board the first defendant, to strike off the second defendant's name from the register.

2. The really contesting defendant was the second defendant who denied the title of the plaintiff. A number of issues were framed by the Trial Court but after all the evidence had been taken, both parties made an endorsement on the plaint to the effect that if with the key produced by the second defendant the Commissioner to be sent by the Court could open the door of the house and the second defendant's things were found in the house the suit should be dismissed and that otherwise the suit should be decreed.

3. As both sides agreed to have the suit decided in this way a commission was issued by the Court and the Commissioner found that the key given by the second defendant would not fit any of the locks and that on the other hand the locks were opened with the keys produced by the plaintiff and the articles found in the house were plaintiff's articles.

4. After this report was made the second defendant wanted to resile from his agreement and to have the suit disposed of on the basis of the evidence recorded in the suit. This application by the second defendant was dismissed and the plaintiff's suit was decreed with costs as against the second defendant.

5. The second defendant appealed to the Subordinate judge and in appeal the learned Subordinate judge was of opinion that the District Munsiff was not justified in decreeing the suit on the strength of the joint endorsement made on the plaint by the parties and that he should have decided the suit in-the light of the evidence recorded in the suit. He accordingly set aside the decree of the District Munsiff and remanded the suit for fresh disposal. The present appeal is from this order of remand.

6. A good deal of argument has been addressed in this appeal to show that the joint endorsement amounts to an adjustment of the suit within the meaning of Order 23, Rule 3, Civil Procedure Code. A number of authorities have been quoted, but I think it is unnecessary to decide in this appeal whether the joint endorsement amounts to an adjustment within the meaning of Order 23, Rule 3 Civil Procedure Code. even assuming that it is not an adjustment the fact remains that the second defendant himself requested the Court to decree the suit in favour of the plaintiff if a certain thing happened, namely if the key that was produced by him did not fit the lock. The Court did what it was asked to do by the second defendant. After this was done lamely, after a Commissioner was appointed and it was actually found that the key did not fit the lock, it was not open to the second defendant to resile from what he stated before in Court. When a party invites the Court to adopt a procedure which is not contemplated by the Code of Civil Procedure and is in fact a procedure extra cursum curiae he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion.

7. As was held in Burgess v. Morton (1896) A.C. 136 where with the acquiescence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Watson observed in that case that there were several decisions of the House of Lords which affirmed:

That the judgment of a Court below pronounced extra cursum curiae is in the nature of an arbiter's award, and that as a general rule at least, no appeal from it will lie.

8. In this particular case it is dear that the decree passed by the District Munsif must be deemed to be a decree passed with consent of both parties and it is not open to either party to appeal from it. On this ground alone it would follow that the appeal must succeed. The second defendant is not entitled to appeal from the decree of the District Munsiff and the decree could not be varied or reversed in appeal by the Subordinate Judge. The order of the Subordinate Judge reversing the decree and remanding the suit must be set aside and the decree of the District Munsiff restored. The appellant is entitled to have his costs in this Court and in the Court below from the second defendant respondent. The first respondent will bear his own costs. Leave to appeal is asked for but I see no reason to grant it.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //