Duraiswamy Mudali vs K. Jayarama Mudali and Others

V. Bakthavatsalu, J.—The second defendant is the appellant. The first respondent herein filed a suit for declaration and injunction or in the

alternative for possession.

The case of the plaintiff is as follows:

The plaintiff is the owner of the suit property having purchased the same under sale deed dated 7.4.1971. The said sale deed was preceded by an

agreement dated 3.4.1971. Ever since the date of sale, the plaintiff has been stocking hay in the suit property. The defendants are close relations

and they are threatening that they would not allow the plaintiff to be in peaceful possession of the suit property. The entire site is surrounded by a

compound wall on the south north and east bounded on the west by Chellammal cattle shed on the south and east by a street and on the north by

the site purchased by the first defendant''s father. Originally the property was the joint family property of Subramania Pillai, Balakrishnan Pillai and

Ramachandra Pillai. They were living in the property in a house and subsequently, they shifted to various places. The suit property is the middle

portion of the entire site. In the partition between the brothers, the suit property was allotted to Balakrishnan Pillai. Subramania Pillai''s allotted

share was vacant and with the permission of Radhakrishnan, the first defendant was using it between 1971 and 1972 for about two years. Except

for that permission, the defendants were never in possession of any portion of the property. The plaintiff continued to enjoy the suit property as the

owner. Hence, the suit is filed for declaration and injunction or in the alternative for recovery of possession.

The case of the defendant is as follows:

The truth and validity of the sale deed dated 7.4.1971 is not admitted. The plaintiff was not in possession of the suit property on the date of the suit

or at any time. The property is in possession of the second defendant for a long time for over 40 years. The plaintiff never owned any property.

The properties are the ancestral properties of the defendants.

The trial Court has framed ten issues and on a consideration of oral and documentary evidence, the trial Court dismissed the suit with costs.

Aggrieved by the said judgment and decree, the plaintiff preferred an appeal in A.S.No. 36 of 1987. The appellate Court allowed the appeal

setting aside the judgment and decree of the trial Court. The appellate Court has further remanded the suit for deciding the question whether the

subject matter was compromised between the parties. The trial Court has also been directed to decide other issues. Aggrieved by the said order of

remand, the second defendant has filed this appeal.

It is contended by the appellant that the order passed by the appellant Court is in violation of Order 41, Rule 23, C.P.C. In any event, the

appellate Court ought to have framed necessary issues and call for a finding by retaining the appeal on its file and that the plea that there was a

compromise does not warrant setting aside the judgment and decree of the trial Court.

Learned Counsel for the appellant contended that the appellant Court has not assigned any reason as to how the judgment of the trial Court on

specific issues are erroneous and the appellate Court has not given any finding on the question of title to the property and as such, the setting aside

of the judgment and decree is wholly erroneous.

There is no representation for the respondents, even though several adjournments were given. Therefore, on the basis of the available materials,

the appeal has to be disposed of. The trial Court passed judgment and decree on 7.4.1984. The appeal is filed in the year 1987. The appeal is

disposed of on 30.11.1993. The appellate Court has held that during the pendency of the appeal, it was represented by the second respondent

that the suit was compromised between the parties and that there is a written agreement to evidence the same. It was contended by the plaintiff that

his signature was obtained in the compromise memo by threat and coercion. It is thus, seen that the compromise is allowed to have been entered

into long after the date of the suit i.e., four years after filing of the appeal. It is also seen that the plaintiff did not accept the truth and validity of the

compromise. It is not seen from the judgment that any application is filed under Order 23, Rule 3, C.P.C. to record the compromise. In the above

circumstances, I fail to understand as to how the appellate Court is empowered to set aside the judgment and decree on mere representation of the

parties that the matter was compromised subsequent to the date of the appeal. It is significant to note that the appellate Court has not only

remanded the suit to the trial Court to conduct enquiry regarding the truth of compromise, but also to give a finding on other issues. The procedure

adopted by the appellate Court is not in accordance with Order 41, Rules 25 or Order 23, Rule 3, C.P.C.

Order 23, Rule 3, C.P.C. relates to compromise of suit. The above rule reads thus:

Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in

writing and signed by the parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit,

the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it

relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter

of the suit)

(Provided that where it is alleged by one party and denied by the order that an adjustment or satisfaction has been arrived at, the Court shall

decide the question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded,

thinks fit to grant such adjournment).

It is thus, clear from the above provision that if the factum of compromise is disputed, then it must be proved to the satisfaction of the Court that

the suit has been adjusted under a lawful agreement or compromise. The copy of the compromise Memo alleged to have been entered is not even

marked in the appeal. Unless and until, the party who set up the compromise files an application to record the compromise by enclosing the memo

of compromise or agreement of compromise, the appellate Court is not empowered to remand the suit on mere oral representation of the second

respondent. Even if an application is filed under Order 23, Rule 3, C.P.C. with the document of agreement, the Court has to conduct enquiry on

the question whether the subject matter of the suit has been compromised or adjusted. If the appellate Court wants a finding on the question of

truth and validity of the compromise, it can call for a finding from the trial Court by retaining the appeal on its file. Without following the above

procedure, the appellate Court is not justified in setting aside the entire judgment and decree and remanding the suit for fresh disposal. Therefore, I

hold that the contention of the learned Counsel for the appellant that the appellate Court has not followed proper procedure in remanding the suit is

well founded.

In support of the same, he also relies upon a decision reported in G. Ramachandra Gupta and Another Vs. Pandurangam Chetty and Others,

wherein it is held thus:

The appellate Court cannot admit further evidence in appeal and then remand the suit for a fresh disposal to the trial Court on the footing of such

evidence to be taken before it, thereby incidentally embarrassing also the trail Court very considerably, which had come to its own conclusion to

the best of its ability on the material placed before it.

Learned Counsel for the appellant contended that only in exceptional cases the Court can remand the suit to he trial Court. In support of the same,

he relies upon a decision reported in Balasubramania Iyer Vs. Subbiah Thevar and Another, In Ahamed Rowther Vs. Bathumal Beevi and

Another, this Court has held that Order 41, Rule 23, C.P.C. do not permit the appellate Court to send the suit back for retrial merely on the

ground that reception of additional evidence is necessary.

In this case, the appellate Court has not given any reason as to how the findings of the trial Court on specific issues are erroneous. In the above

circumstances, the appellate Court is not justified in remanding the entire suit to the trial Court on the ground that enquiry regarding the truth of

compromise should be decided. For the above reasons, I hold that the order of the appellate Court in remanding the suit has to be set aside. The

appellate Court itself can conduct enquiry in accordance with Order 23, Rule 3, C.P.C. for the purpose of ascertaining the truth and validity of the

compromise. If the appellate Court feels any difficulty in conducting enquiry, the appellate Court can call for a finding from the trial Court by

retaining the appeal. In the light of the principles of law laid down in the decisions reported above, I have no hesitation in holding that the order of

the appellate Court in remanding the suit is liable to be set aside.

In the result, the civil miscellaneous appeal is allowed. No costs. The order of the appellate Court in remanding the suit to the trial Court is set

aside. The appeal is remanded to the appellate Court and the appellate Court shall restore the appeal to its file and dispose of the same in

accordance with the directions contained supra.