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Vepari Dolappadu and ors. Vs. Thottadi Suranna - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in85Ind.Cas.408
AppellantVepari Dolappadu and ors.
RespondentThottadi Suranna
Cases ReferredJamnabai v. Fazalbhoy Heptoola
Excerpt:
practice--consent order, when can be set aside. - .....the defendants' pleader has surrendered any right of the defendants in allowing the order to be passed by consent. in a case reported as jamnabai v. fazalbhoy heptoola 77 ind. cas. 355: a.i.r.(1923) pc 184 : 46 m.l.j. 160 : 40 c.l.j. 272, it was held, that even in the case of an admitted mistake, if there was no injustice to the parties concerned, an order, which was in point of fact consented to by the advocate of a party cannot be set aside except on proof that serious and substantial injustice would result to the party from letting the consent order stand. as i have found, that in this case defendants do not suffer any loss of rights by this consent order, i do not think, there is any need of calling for any report from the subordinate court.2. i dismiss the second appeal with.....
Judgment:

Madhavan Nair, J.

1. Plaintiff's suit was for putting up certain bunds shown in the plaint plan and also for damages against the defendants on account of their negligence in not helping the plaintiff. Both the lower Courts dismissed the plaintiff's suit. In the Appellate Court, the learned Subordinate Judge while dismissing the appeal added to the judgment a note. 'But plaintiff's 'Vakil asks me to pass a decree ordering an amin to be sent for having straight bunds put up as per terms of the agreement Ex. A between the survey stones demarkating the parties' land from each other. Mr. P.L. Narasimham for the defendants has no objection, provided the appeal is dismissed in other respects with costs.' The decree which has been passed, as it appears from the judgment, by consent of the Vakil for the defendants, is objected to by the defendants-appellants. They have filed an affidavit in this Court to the effect that they never gave any permission to their Pleader to consent to such a decree. A counter-affidavit has been filed by the respondent's Vakil. It is argued, that under such circumstances, a report should be called for from the lower Court asking it whether the defendants' Pleader had the consent of his client in allowing such an order to be passed. It is stated that some of the rights of the defendants are surrendered by the Pleader by consenting to such an order especially with reference to their claim to plot B. I do not think, in the circumstances of the case, it is necessary to call for a report at all. I find that what the learned Vakil for the plaintiff urged was only to enforce the agreement as contained in Ex. A. The defendants did not object to this agreement in their written statement. Without expressing any opinion on the question whether the land B belonged to the plaintiff or to the defendants, I would say for purposes of this second appeal that in the First Court, the issue, relating to it, was not argued by the Vakil for the defendants and that the first defendant also stated in his evidence that the plaintiff is in enjoyment of the land. It does not appear to me that the defendants' Pleader has surrendered any right of the defendants in allowing the order to be passed by consent. In a case reported as Jamnabai v. Fazalbhoy Heptoola 77 Ind. Cas. 355: A.I.R.(1923) PC 184 : 46 M.L.J. 160 : 40 C.L.J. 272, it was held, that even in the case of an admitted mistake, if there was no injustice to the parties concerned, an order, which was in point of fact consented to by the Advocate of a party cannot be set aside except on proof that serious and substantial injustice would result to the party from letting the consent order stand. As I have found, that in this case defendants do not suffer any loss of rights by this consent order, I do not think, there is any need of calling for any report from the Subordinate Court.

2. I dismiss the second appeal with costs.


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