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Sooba and anr. Vs. Amar Nath Krishan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Ist Appeal No. 15 of 1981
Judge
Reported inAIR1985J& K72
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Samvat - Section 96(3)
AppellantSooba and anr.
RespondentAmar Nath Krishan Lal
Appellant Advocate T.C. Kotwal, Adv.
Respondent Advocate D.N. Gupta, Adv.
DispositionAppeal dismissed
Cases ReferredKewal Krishan v. Shiv Kumar
Excerpt:
- .....agents for the parties and their statements before the court would bind the parties and the parties are estopped from resiling therefrom in appeal by saying that it was not a deeree under section 96(3) c.p.c. in the present case the counsel for the parties arrived at certain agreement and because of the eonsent given by them, the trial judge passed the consent deeree. the decree thus passed by the trial court was a consent decree and as contemplated under section 96(3) c.p.c. the present appeal is incompetent,8. in the result the appeal is dismissed but without making any order as to costs. this also disposes of the cross-objections (no. 23 of 1981) filed by the respondent, in the light of observations made above.
Judgment:

K.K. Gupta, J.

1. This appeal is directed against the judgment and decree of Addl. District Judge, Jammu, dt. Feb. 7, 1981, decreeing the suit of the plaintiff-respondent for a sum of Rs. 8,661.98 p. recoverable from the defendants-appellants.

2. The plaintiffs suit was that the defendants purchased cloth from their shop on various occasions and after deducting the payments made by the defendants an amount of Rs. 12,000/- remained due against them which was not paid despite several demands made for it. The defendants denied the claim of the plaintiff as, according to them, they made excess payment of Rs. 2,104.95p. They further averred that an amount of Rs. 500/-was also paid to the plaintiffs on 15-11-1975 prior to the institution of the suit and another amount of Rs. 500/- through bank draft after the institution of the suit and thus they claimed themselves to be entitled to recovery of Rs. 3,104.95 back from the plaintiff. The defendants thus made a counter claim and affixed court fees in regard to the above said amount.

3. On the pleadings of the parties the trial court framed four issues in the case. Both the parties led evidence in the case and the learned Addl. District Judge, Jammu decreed the suit of the plaintiffs to the extent of Rs. 8,661.98 p. On the basis of agreement between the parties.

4. I have heard learned counsel for the parties. The preliminary point raised by the learned counsel for the respondent in this case is that the present appeal is not maintainable because of bar contained in Section 96(3) C.P.C. as the present appeal arises from a decree passed by the court with consent of the parties. In support of his contention he had relied upon authorities reported as AIR 1968 Guj 301 and AIR 1970 Punj & Har 176. The learned counsel for the appellants has, however, contended that no consent was given by the appellants and the judgment of the trial court mentioning such consent cannot be sustained as it is silent about the reasons which led the Judge to pass such order and it is not a judgment in the eye of law. He has, in support of his arguments, relied upon the authorities reported an AIR 1938 Pat 69. AIR 1952 Trav. Co. 560 and AIR 1959 All 505.

5. In case Isaq Usman v. Vali Moh'd Isaq, AIR 1968 Guj 301 (supra) it has been held that no appeal against any decree passed on the basis of the consent of the parties is competent and there need not also be any written terms of agreement between the parties placed before the Court and it is enough if the judgment discloses that the decree or order that came to be passed in that case was on the basis of consent of the parties. In another case Kewal Krishan v. Shiv Kumar AIR 1970 Punj & Har 176 (supra) it has been held that in order to set aside a consent decree on the ground that the consent was obtained by coercion, the proper remedy is to file a separate suit and not an appeal. In AIR 1438 Pat 69, their Lordships have remarked that it is not sufficient judgment within the Civil P.C. to state that the judge is in agreement with the finding of the court below and he is bound to express his reasons for the findings at which he arrives. Same view has been taken in AIR 1959 All 505 (supra) and AIR 1952 Trav. Cochin 560 (supra).

6. The learned Addl. District Judge in para 16 of his judgment has observed as under :

'Issue Nos. 2 and 3 : The learned counsel for the parties have examined the accounts in the light of the statements of Krishan Lal plaintiff and Sobha Ram defendant and have arrived at an agreed conclusion that a total amount of Rs. 9161.48 principal plus interest remains due from the defendants to the plaintiffs at the time of the institution of suit and they agree that Rs. 500/- paid subsequently needs to be adjusted. After this adjustment, an amount of Rs. 8,661.98 remains as payable by the defendants to the plaintiffs, I have satisfied myself also and find that the calculations and adjustments made by the learned counsel for the parties is correct and just.'

In memorandum of appeal, the appellants in para 13 have mentioned as under : --

'13. It is denied that there was any agreement between the parties about the passing of the decree in appeal against the appellants. There was no such agreement nor was the advocate who appeared for the appellants authorised to enter into such an agreement.'

Section 96(3) C.P.C. provides that no appeal shall lie from a decree passed by the Court with the eonsent of the parties. This provision of law is based on the principle that a person who gives his eonsent to a deeree being passed against him, is later on estopped from challenging the same. Onee a decree is passed with the consent of the parties and the judgment shows that both the parties had consented to it, no appeal can He against such judgment and deeree. Keeping in view this law it is to be ascertained whether the decree passed by the trial court was with the consent of the parties. As quoted above, the learned Addl. District Judge has specifically mentioned in his judgment that counsel for the parties examined accounts and have arrived at an agreed conclusion that a total amount of Rs, 9,161.48 remains due from the defendants to the plaintiff at the time of institution of the suit and that they agreed that Rs. 500/- paid subsequently required to be adjusted. The learned Addl. District Judge, has further satisfied himself, as is apparent from his judgment, about the calculations and adjustments made by the counsel for the parties which, according to him, were correct and just. The contention of the learned counsel for the appellants that no consent was given either by his party or counsel does not seem to have any basis in view of the remarks made by the trial Judge in his judgment. The appellants in then memo of appeal did not specifically deny such consent made by them and they cursorily mentioned in para 13 of their memo of appeal that there was no such agreement nor was the advocate, who appeared for them, authorised to enter into such an agreement. It is true that the trial Judge has not written a reasoned Judgement, but I think it is not infirmity in view of the fact that the decree passed by him was on the basis of the consent of the parties in which case (he) was not required to give any reasons for coming to such conclusion.

7. The other point canvassed by the learned counsel for the appellants is that the agreement entered into between the parties was not reduced in writing by the trial Judge and in absence of such statements it cannot be said that the parties consented to the order being passed. In my opinion, this argument is also not tenable because their need not be any written terms of agreement between the parties placed before the court and it is enough if the judgment discloses that the decree was passed on the basis of the consent of the parties. Advocates of both the parties are authorised agents for the parties and their statements before the court would bind the parties and the parties are estopped from resiling therefrom in appeal by saying that it was not a deeree under Section 96(3) C.P.C. In the present case the counsel for the parties arrived at certain agreement and because of the eonsent given by them, the trial Judge passed the consent deeree. The decree thus passed by the trial court was a consent decree and as contemplated under Section 96(3) C.P.C. the present appeal is incompetent,

8. In the result the appeal is dismissed but without making any order as to costs. This also disposes of the cross-objections (No. 23 of 1981) filed by the respondent, in the light of observations made above.


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