Rajamannar, Officiating C.J.
1. The only question in this Letters Patent Appeal is whether the learned Judge, Chandrasekhara Aiyar, J., was right in holding that the appellants could not attack the decree passed by the learned City Civil Judge. The learned Judge on a consideration of what happened before the City Civil Judge who tried the suit held that the appellants could not be heard to dispute in appeal the rate of maintenance fixed by the learned Judge. The suit was filed by the appellants, the first appellant being the wife and the second appellant being the minor daughter of the respondent. They claimed maintenance for both and marriage expenses for the second appellant. The respondent filed a written statement denying his liability to pay any maintenance. When the suit came on for trial what happened before the learned Judge is best set out in his own words in paragraph (4) of his judgment,
Though the allegations of abandonment and ill-treatment made in the plaint were denied by the defendant in his written statement, still at the time of trial, as a matter of compromise, the defendant considered plaintiff's right to maintenance and agreed to give them such amount as may be fixed by Court. Both sides left the question of quantum of maintenance, past and future, to be determined by me on the statements made by the respective counsel at the bar, as regards the income of the defendant and the needs and requirements of the plaintiffs and did not let in any oral evidence.
It may also be mentioned that neither was any documentary evidence let in.
2. It is contended by the learned advocate for the appellants that this was not a case in which the Court acted extra cursum curiae but at the most disregarded certain rules of procedure and evidence, and the parties never intended to give up the right of appeal either expressly or by necessary implication. The proposition of law that a mere agreement between the parties that the Court may dispense with certain rules of procedure and evidence without giving up the right of appeal does not deprive the parties of the right of appeal is well established : Vide Sankaranarayana v. Ramaswamiah (1922) 44 M.L.J. 258 : I.L.R. 47 Mad. 39 and the leading cases of Pisani v. Attorney General for Girbraiter (1874) L.R. 5 P.C. 516 and Burgess v. Morton (1896) A.C. 136; but it is a question of fact in each case whether the circumstances merely amounted to a deviation more or less from the ordinary procedure or whether the agreement between the parties was 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 intention can only be ascertained by the events which happened in the particular case, and the decisions cited by the learned advocate for the appellants can only help in supplying the general principles.
3. In the present case there are two important circumstances which must be borne in mind. The first is this. The defendant had filed a written statement denying liability to pay separate maintenance to his wife. He also alleged that he was still willing to take back his wife. Nevertheless when the case came up for trial he conceded the plaintiffs' right to maintenance not expressly or impliedly in abandonment of a part of his plea, but, as expressly stated by the learned Judge as a matter of compromise, and evidently it was part of the compromise that he would agree to give the plaintiffs such amount as may be fixed by Court. Secondly, both sides left the quantum to be determined by the learned Judge not on any evidence which had so far been adduced by either side--actually no evidence had been so adduced--but to be determined on the statements made by counsel from the Bar. Now, clearly statements of counsel from the Bar, though they may be entitled to all consideration, can never be evidence in the case. To ask the Court to give a decision based merely on statements of Counsel at the Bar is certainly not a slight departure from the ordinary practice. It puts the Court entirely out of its course. The statements by Counsel have not been recorded, a fact which certainly has a bearing on the intention of the parties, namely, whether they intended to challenge the decision of the Court by way of appeal. It will be a legitimate question to ask, on what material could the parties attack a decision of the Court when there was no record of what had been stated by Counsel at the Bar ?
4. In Venkata Somayajulu v. Venkanna : AIR1934Mad397 what happened was this : The plaintiff had been examined in chief. Some documents had been filed. Then at the defendant's request the District Munsiff made a local inspection of 'the site. The parties thereafter requested the Court to give a decision on the evidence already on record and intimated that they proposed to adduce no further evidence. The learned Judge, Venkatasubba Rao, J., held that the parties only abridged the trial by seeking a decision on incomplete evidence, and this being no more than some deviation from the ordinary procedure, the judgment was not extra cursum curiae. The learned Judge, however, on a construction of the document held that the right of appeal had been clearly and unequivocally waived. This decision reveals the necessity of examining the facts of each case for the application of the general principle. In Sankaranayana v. Ramaswamiah (1922) 44 M.L.J. 258 : I.L.R 1922. 47 Mad. 39 the terms of the agreement signed by the plaintiff and two of the defendants were 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.
The learned Judges, Schwabe, C.J. and Wallace, J., held that the agreement did not amount to an agreement that the Court should act extra cursum curiae. The learned Judges expressed their dissent from two Bench decisions of this Court in Nidamarthi Mukkanti v. Thammana Ramayya I.L.R. (1902) Mad. 76 and Chengalroya Chetti v. Raghava Ramanuja Doss (1918) 37 M.L.J. 100. In the latter case where the terms of the agreement were,
We shall abide by any kind of decree passed by the Courts after a personal inspection of the place in dispute,
it was felt by Sadasiva Aiyar and Spencer, JJ., that the trial Court had acted thereafter as arbitrator. Apart from this the observations of Schwabe C.J., at page 44 did not help the appellants in this case. The learned Chief Justice appears to make a distinction between questions of fact and questions of law. In that very case before him,
if an appeal had been attempted on the ground that the learned Munsiff took a wrong view of the facts or that the procedure of dispensing with the evidence was irregular,
he was prepared to accept the argument that the parties had agreed not to take any such point and that argument would be right; but the learned Judge thought that there was nothing in the words to indicate that the parties intended to give up all rights of appeal on questions of law which might arise or did arise in the case. Applying this distinction to the present case it follows that the learned City Civil Judge if he erred at all, erred only on fact. No question of law arises. In this view, we do not feel more need be said about this decision which to a great extent is inconsistent with the decisions of two Division Benches in Nidamarthi Mukkanti v. Thammana Ramayya I.L.R. (1902) Mad. 76 and Chengalroya Chetti v. Raghava Ramanujadoss (1918) 37 M.L.J. 100 as well the decision of the Bombay High Court in Jumnadas v. Gordhandas (1986) 8 Bom. H.C.615. The learned advocate for the appellants cited to us Moulvi Zahirul Said Alvi v. R.S. Seth Lachminarayan (1931) 60 M.L.J. 648 which, we find, has no application to this case, because it may not be accurate to speak of the decree in this case as a consent decree. It was not as if the actual rate of maintenance was a rate to which the parties consented.
5. We entirely agree with the remarks of Chandrasekhara Aiyar, J., that there are no materials in the shape of evidence which could be acted upon, on the strength of which the appellate Court can safely come to a different conclusion from that of the lower Court. Added to this is the first circumstance set out at the beginning of this judgment, namely, that the concession by the defendant of the plaintiffs' right to maintenance was a matter of compromise and bound up with the procedure which was agreed to by both sides and which left the Court free to pursue a course which was not in any sense judicial.
6. The appeal is therefore dismissed with costs.