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Durairaj Vs. Shanmugham and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1980)1MLJ291
AppellantDurairaj
RespondentShanmugham and anr.
Cases ReferredBalasubramania v. Subbiah
Excerpt:
- .....district judge had not borne in mind any of the essential ingredients which are necessary before a matter is remanded. the learned counsel for the appellant submitted that if the consent given by the counsel on record is without authority, it would not be binding upon the parties to the proceedings.7. mr. k. yamunan, learned counsel for the respondents/defendants pleads that there is no illegality in an order of remand being made on the be is of consent of parties, and secondly when his is a consent order this c.m.a. is not maintainable, and thirdly consent given by the counsel in the best interests of his client is binding upon the parties to the proceedings unless it be shown that the counsel has no authority to give consent on behalf of his client, and in this case, counsel appearing.....
Judgment:

T. Sathiadev, J.

1. This appeal is preferred against a cryptic order of remand made by the District Judge, Pudukottai in A.S. No. 28 of 1979 directing the trial Court to dispose of the suit afresh after giving opportunity to the plaintiff to amend the plaint suitably for the relief of declaration of title and 'giving opportunities to the defendant to put forth his evidence.'

2. The plaintiff, who is the appellant herein, filed a suit for permanent injunction claiming that he had purchased the property from one Ramaswamy Chettiar on 24th December, 1973, under a registered sale deed, and he has been in possession thereof by paying kist. Defendants, who are brothers, are having lands south of the suit property and since they started obstructing the plaintiff from ploughing the land, he has filed the suit for the relief of permanent injunction.

3. Defendants claim that the sale deed dated 24th December, 1973 is a concocted document and there has been no valid sub-division of the property. The cause of action is an imaginary one and they never obstructed the plaintiff, as alleged in the plaint.

4. The trial Court found that the suit being one for bare permanent injunction, it is only the factum of possession that has to be considered and on the merits of the matter, it held that the plaintiff was in possession of the property on the date of the suit and such a claim is supported by documents and therefore decreed the suit.

5. Defendant preferred an appeal in A.S, No. 28 of 1979. They also filed some documents before the lower appellate Court. As the lower appellate Court found that the pleading and documents indicated that there is some dispute regarding the title and in view of the parties agreeing for the matter to be remanded to the trial Court for fresh disposal, it allowed the appeal and remanded the matter to the trial Court accordingly, without any further discussion of the merits of the matter or on other aspects which require to be considered before an order of remand is made under Order 43, Rule 1, Civil Procedure Code. Aggrieved against this order, the above Civil Miscellaneous Appeal has been preferred. In ground No. 3 of the memorandum of appeal grounds, it is stated as follows:

The learned District Judge has failed to see that the appellant did not authorise the counsel to give any consent and even if a consent has been given by the counsel, it did not bind the appellant and it will not be a ground for remand.

6. Mr. G. Subramanian, learned Counsel for the appellant contends that there can be no remand under Order 41, Rule 23, Civil Procedure Code on the basis of consent between the parties, and before an order of remand is made, the appellate Court is bound to apply its mind and find out whether the matter merits fresh disposal by the trial Court, and a mechanical order without setting aside the finding of the trial Court, having been discouraged by this Court in several decisions, the District Judge had not borne in mind any of the essential ingredients which are necessary before a matter is remanded. The learned Counsel for the appellant submitted that if the consent given by the counsel on record is without authority, it would not be binding upon the parties to the proceedings.

7. Mr. K. Yamunan, learned Counsel for the respondents/defendants pleads that there is no illegality in an order of remand being made on the be is of consent of parties, and secondly when his is a consent order this C.M.A. is not maintainable, and thirdly consent given by the counsel in the best interests of his client is binding upon the parties to the proceedings unless it be shown that the counsel has no authority to give consent on behalf of his client, and in this case, counsel appearing for both the sides have made a joint endorsement for remanding the matter, there being no illegality in the order, it does call for any interference.

8. At the outset, it would be useful to consider whether the order passed by the lower appellate Court is based on a valid consent given by the plaintiff or not At the time of admission, this Court was not apprised about the manner in which the agreement was entered into between the parties for remanding the matter. But at the time of final disposal it is made clear by the counsel for the appellant, who has received a communication from the counsel for the plaintiff in the lower appellate Court to the effect that a joint endorsement has been made on the appeal grounds, as follows:

The matter may be remanded for amending the plaint, to decide the question of title and adducing further evidence.

It is now made clear that the plaintiff had not signed the joint endorsement. He has not given any written authority to the counsel to give consent for compromising the matter in the manner in which it has been done. When there is absence of written authority by the plaintiff to the counsel to make the joint endorsement can the counsel on record still say that he has acted in the best interest of his client and therefore it is binding upon his client?

9. Mr. Yamunan contends that for entering into a compromise in the manner it has been done in this case by making the joint endorsement, if it be shown that it was done in the best interest of his client, later on the client cannot assail the joint endorsement and it would be binding upon the party. In support of this contention, ho relied upon the decision of the Supreme Court in Employers Monoharbahal Colliery v. K.N. Mishra : AIR1975SC1632 wherein it has been held that a compromise arrived at under Order 23, Rule 3 Civil Procedure Code, by a counsel in the best interest of his client, will be binding upon him even though he had not been empowered to act specifically, immediately before the counsel signed the compromise. It was a case in which the party claimed that even without service of notice on him and of intimation of lodgement of the appeal, and without himself empowering the lawyer to act in the case, it had been settled by the counsel. In the circumstances of that case, it was held that the counsel was authorised on the basis of documents marked in the proceedings, and there being no lack of authority, it was held that such a compromise would be binding on the party.

10. In Madras Co-op. Printing & Publishing Society Ltd. v. O. Ramalingam : (1976)1MLJ136 , it was held that the counsel appearing for a party is always having an implied authority to enter into a compromise on behalf of his party and that the only limitation is that, if there was any written prohibition or limitation, he will have to act within that prohibition or limitation.

11, Mr. Subramanian, would refer to the decision reported in Govindammal v. Marimuthu Maistry : AIR1959Mad7 , to contend that there is need for proper care being taken by the counsel before a compromise is signed by the counsel, and if there is no written authority, it cannot be implied therein. In this decision, innumerable decisions on this aspect had been considered by the learned Judge before concluding as follows:

An examination of these authorities and extracts from standard publications on professional conduct leads us to the following deductions: The decisions appear to be fairly clear that even in cases where there is no express authorisation to enter into a compromise, under the inherent authority impliedly given to the Vakil he has power to enter into the compromise on behalf of his client. But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing, prudence dictates that unless express power is given in the vakalat itself to enter into compromise, in accordance with the general practice obtaining, a special vakalat should be filed or the specific consent of the party to enter into the compromise should be obtained. If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the vaki, on his or her behalf.

Mr. Justice Balakrishna Ayyar, in Ramaswami v. Jai Hind Talkies (1976) 26 C.C. 73 : A.I.R. 1956 Mad 586, has held that it is not competent to a pleader to enter into a compromise on behalf of his client without his express authority to do so, and in that case, since the vakalath did not give the counsel the authority to compromise, it was held that it would not be binding on the party.

12. In this context it would be necessary to refer Central Act CIV of 1976. In Rule 3 of Order 23, Civil Procedure Code, it is now provided that if it is proved to the satisfaction of the Court that a suit is adjusted by any lawful agreement or compromise 'in writing and signed by the party' , then the Court shall order such agreement to be recorded and pass decree accordingly. The words 'in writing and signed by the party' have been introduced by the Amending Act. Therefore the authorities above referred to would not be relevant for holding that a compromise arrived at on the basis of a counsel signing the memorandum of compromise or making an endorsement on the bundle without the parties signing them, cannot be taken into account. There is no question of implied authority and the party to the proceedings should be made fully aware of the matter being settled and it should be done by him in writing and the contesting parties must subscribe to such a compromise, to be valid and binding upon them.

13. In this case, the plaintiff, has not signed the endorsement. Nor did he give any authority in writing to his counsel for entering into a compromise in accordance with the amended provisions of Order 23, Rule 3. It is now claimed by the counsel for the plaintiff that he has not secured any such authority, from him before he made the joint endorsement. The counsel who appeared in Court below has intimated Mr. G. Subramanian, that since She party was away from Court at that time, there was no time for him to consult the party, but he thought that the endorsement would be to his benefit. In the order of the lower appellate Court, it is not even stated that a joint endorsement has been made by the counsel on record. Rather it states that 'the parties rightly agreed that this matter may be remanded to the lower Court' and therefore it was remanding the matter. It had not taken the care to refer to the amended provisions of the Civil Procedure Code, to know in what manner such a compromise can be recorded in a pending proceeding. There is a non-compliance of the provisions of Order 23, Rule 3, because the endorsement tantamounts only to a compromise, and in fact the counsel for the respondents contends that it is a compromise binding upon the party and therefore even this Civil Miscellaneous Appeal is not maintainable. The decisions relied upon by him can be of no avail to the respondents herein in view of the amended provisions of the Code, and hence the endorsement having not been based on a valid compromise entered into between the parties to the proceedings, it is not a consent order, therefore the order of remand is illegal.

14. The other point taken by Mr. Yamunan learned Counsel for the respondents would no doubt survive, in spite of the findings above given. But in view of the fact that he had laid considerable stress about the existence of power in the appellate Court to remand the matter purely in the basis of consent between the parties. I proceed to consider the decisions relied upon by him. He refers to the decision in Kovi Piciah v. Pamulapatti Chinna Subba Naidu (1960) l A.W.R. 94 : (1960) A.L.T. 559 which has referred to a Division Bench decision of this Court and also to the decisions of other Courts to held:

That a consent order raises an estoppel as much as a decree passed in invitum, has been settled by a long course of decisions. So long, therefore, as a consent order stands, it is not open to either party thereto to give it the go-by even if it contains clauses that are bad in law.

It was held that if parties to the appeal expressed their consent for remanding the matter, to the trial Court for fresh disposal, the appellate Court will be well within its jurisdiction in remanding the matter accordingly, because it would not affect the jurisdiction of the Court, and even if there be an error in law, it being an error of procedure, it can be cured by consent.

15. The learned Judge has referred to the Division Bench decision of this Court in Natesa Gramani v. Venkatarama Reddi (1907) 17 M.L.J. 518 : I.L.R. (1907) Mad. 510 and also to the decision in Muthusamy Odayan v. Kolandaivelu Odayan A.I.R. 1914 Mad. 15 wherein it was held that the new Civil Procedure Code was wider than the power under the old Code and that an order of remand on the basis of consent of parties was neither illegal nor improper.

16. Mr. Yamunan also referred to the two decisions of the Privy Council in Zahirulsaid v. Lachmi Narayan and Zahirulsaid v. Lachmi Narayan , to contend that a decree passed by consent of parties should appear on the face of the decree when drawn, and if the Court declares that it has proceeded entirely upon the consent of parties, such a declaration alone is sufficient, and the appeal must be dealt with on such footing.

17. In this case the lower appellate Court has stated that the parties rightly agreed for remand of the matter, and therefore he claims that this Court should not entertain the other objections taken by the appellant herein and the matter has to be proceeded with, on what has been stated in the order. I do not think that such a contention can be entertained because, the illegality of the order can be made out only if it established that there has been a valid consent as provided under the law. If there is a consent recorded by following the procedure contemplated under Order 23, Rule 3, Civil Procedure Code, in view of the two Division Bench decisions of this Court and the other decisions which are referred to in Pichiah v. Chinna Subba Naidu (1960) 1 A.W.R. 94 there can be an order of remand under Order 41, Rule 23, Civil Procedure Code, without the Court going into the aspects of the matter which it is required to take into account, before an order of remand can be made.

18. Mr. Subramanian would invite my attention to the decision rendered in Balasubramania v. Subbiah : AIR1965Mad417 to the effect that an order of remand under Order 41, Rule 23, Civil Procedure Code could not be passed indiscriminately even though the requirements of law were not satisfied at all and that the appellate Court should not mechanically remand a suit without applying its mind as to whether the judgment and findings of the trial Court are correct or not and require to be reversed or set aside. When the order of remand is passed by consent of parties, it can be so done without the need to go into these aspects. Hence, I agree with the contention of Mr. Yamunan that there can be an order of remand purely based on consent of parties, provided the procedure under Order 23, Rule 3, Civil Procedure Code, is strictly followed.

19. The other contention taken by him that this order being a consent order, no appeal will lie as against such an order under Section 96(3), Civil Procedure Code, but in view of what I have held on the first point, this aspect does not arise for consideration.

20. Now, dealing with the nature of the order passed by the lower appellate Court, 1 find that there are only two paragraphs which is as follows:

Heard arguments. The suit is filed for bare injunction. But the pleadings and documents filed indicate that there is dispute regarding title to the property. Tire appellants had also filed some documents to prove that they may have some title. In view of it, the parties rightly agreed that the matter may be remanded to the lower Court for fresh disposal giving opportunities to the plaintiff to amend the plaint suitably for the relief of declaration of title and giving opportunities to the defendant to put forth his defence.

It is stated that the pleadings and documents filed indicate that there is dispute regarding title to the property. But the District Judge nowhere refers to the particulars of the pleadings and of documents which deal with the aspect of title and which require to be considered by the trial Court, and to what extent the trial Court had not dealt with them. The suit was filed for the limited relief of bare injunction, and I have referred to some of the facts based on which the trial Court has decreed the suit. First appellate Court is duty bound to refer to the relevant facts before holding that there is dispute regarding title to the property. The trial Court has rightly stated that the suit being one for permanent injunction, it is only concerned with the factum of possession in this suit. When such is the clarity with which the trial Court has approached the matter, if the lower appellate Court is to hold that the pleadings refer to dispute regarding title, it is bound to refer to the nature of claim and counter-claim made by the parties, and only thereafter it can conclude that there is need to go into the aspect of title. It has thoroughly lost sight of the fact that it was only a suit for bare injunction, and when the plaintiff is seeking the limited relief of injunction, he cannot be compelled to convert the suit as one for title. In the next sentence, the Court holds;

The appellants had also filed 'some' documents to prove that they may have 'some' title.

This approach calls for strong disapproval. But restraint in expressions in judicial pronouncements being a necessary concomitant of its institutional glory and respect, this Court rests content by stating that this manner of disposal is not expected from a District Judge. He does not even state as to what are those documents and what is that 'some' title that can be made out. There is a total lack of application of mind regarding the matter involved, and summary orders by Court in a laconic manner never bring justice to parties, and no Court shall adopt such a procedure.

21. The next sentence is the crucial one on which I have already dealt with in detail to hold that there was no agreement between the parties and the endorsement cannot bind the plaintiff; when such is the position, it is not known how the Court below can state:

The parties rightly agreed.

On his understanding of the matter, there is dispute regarding title, and the appellants have also filed some documents and they may have some title. To say the least, this is one of the unsatisfactory judgments that can be rendered by an appellate Court.

22. The learned Counsel who had appeared for the plaintiff in the Court below ought to have looked into the provisions of the Civil Procedure Code before he had committed his client in the manner in which he bad done. Therefore, for all the reasons above stated, the order of the Court below is set aside, and it is directed to take up the matter and dispose of the appeal on its merits bearing in mind the principles laid down in Order 41, Civil Procedure Code. No costs.


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