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Ramasawmi Pillai Vs. Badra Nayakar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in55Ind.Cas.267
AppellantRamasawmi Pillai
RespondentBadra Nayakar and ors.
Cases ReferredBasangowda v. Churchigirigowda
Excerpt:
appeal, withdrawal of - vakil, power of, to compromise, whether involves power to withdraw--civil procedure code (act v of 1908), section 115--jurisdiction, refusal to exercise, what amounts to--refusal to entertain application. - - he is clearly wrong hers. it is clear that the present district judge has misunderstood the terms of the vakalath as well as the terms of the order of mr......his allegation was that his vakil had improperly withdrawn the appeal. the reasons given by the district judge do not commend themselves to me. nonetheless i would have had no jurisdiction to go into the matter but for the fact that the district judge ends his order by saying that 'the petition does not lie,' thereby declining jurisdiction to hear the petition. the allegations contained in the affidavit of the petitioner certainly require investigation. without asking the vakil concerned for an explanation and without taking further evidence in the case, the district judge disposed of the application on two grounds both of which are unsustainable. the 1st ground is that the vakalath authorised the vakil to compromise and, therefore, the vakil was competent to withdraw the appeal. he.....
Judgment:

Seshagiri Aiyar, J.

1. This is a petition to revise the order of the District Judge of Ramnad refusing to allow the petitioner to conduct his appeal. His allegation was that his Vakil had improperly withdrawn the appeal. The reasons given by the District Judge do not commend themselves to me. Nonetheless I would have had no jurisdiction to go into the matter but for the fact that the District Judge ends his order by saying that 'the petition does not lie,' thereby declining jurisdiction to hear the petition. The allegations contained in the affidavit of the petitioner certainly require investigation. Without asking the Vakil concerned for an explanation and without taking further evidence in the case, the District Judge disposed of the application on two grounds both of which are unsustainable. The 1st ground is that the Vakalath authorised the Vakil to compromise and, therefore, the Vakil was competent to withdraw the appeal. He is clearly wrong hers. The power to compromise does not involve a power to withdraw an appeal unconditionally. That power must be given specifically and cannot be implied from the general words authorising the Vakil to compromise. InThenal Ammal v. Sokkammal 41 Ind. Cas. 429 this Court held that the powers to compromise must be very carefully scrutinised. Reference may also be made to Basangowda v. Churchigirigowda 5 Ind. Cas. 968 .

2. The other reason given by the District Judge is equally wrong. He refers to an order made by the District Judge, Mr. Moore, as if that learned Judge had authorised the withdrawal on the day the case was to be heard. The order of Mr. Moore is: 'Adjourned to 22nd March 1917 at the request of the Vakils on both sides. It is stated that this appeal will be withdrawn as the matters in dispute have been compromised.' This does not show that without a compromise the Vakils promised to withdraw the appeal. It is clear that the present District Judge has misunderstood the terms of the vakalath as well as the terms of the order of Mr. Moore and by misunderstanding these two documents he has declined to go into the case by saying that the petition does not lie. Therefore, I am entitled under Section 115 to set aside that order. I reverse his order and direct him to enquire into the allegations contained in the affidavit. The District Judge will see that it is in the interests of the legal practitioner concerned that this matter should be set at rest as early as possible before the parties and the Pleaders forget what happened on those dates.

3. With these remarks I send back the case to the District Judge, with directions to re-take the case on his file and dispose of it according to law. Costs will abide.


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