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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Messrs. T. Krishna Rao and S. Ramayya Nayak for Appt.
  • Messrs. K. Srinivasa Rao, M.G Kamath and G.K Govinda Bhat for Respts.
Judges
  • Govinda Menon
  • Basheer Ahmed Sayeed, J.
Acts
  • Section 96 C. P. Code
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Messrs. T. Krishna Rao and S. Ramayya Nayak for Appt.
  • Messrs. K. Srinivasa Rao, M.G Kamath and G.K Govinda Bhat for Respts.
Judges
  • Govinda Menon
  • Basheer Ahmed Sayeed, J.
Acts
  • Section 96 C. P. Code
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This action originated in O. S. No. 200 of 1949 before the Subordinate Judge of South Kanara. The plaintiffs (1 to 7) and certain defendants (24 to 26) were members of the mortgagors' family, and defendants 1, 2, 4 and 5 (the appellants in this appeal) were members of the mortgagees' family. The suit was for redemption of a usufructuary mortgage evidenced by Exhibit 1 dated 15-6-1909 for Rs. 1,899, under which the mortgagees were in possession.

The main contested issue at trial was the quantum of compensation for improvements payable to the mortgagees in possession. The mortgagees' written statement valued improvements at Rs. 36,290. A commissioner was appointed, who, after inspection and detailed inquiry, reported on 4-6-1950 that the value of improvements on redemption amounted to Rs. 22,063-14-0. Objections to the commissioner's report were filed by both sides, the defendants seeking enhancement and the plaintiffs contending the valuation was too high. The commissioner filed further remarks on 22-7-1950 in response to objections.

On 30-9-1950 the advocates for both sides filed a joint memorandum stating that the parties "will abide by the decision of the court on the issues raised in the suit, after local inspection and perusal of the documentary evidence in the case" and that "They have no oral evidence to be adduced." The memorandum was signed by the advocates (not by the parties themselves). The learned Subordinate Judge, with the parties and their counsel present, conducted a local inspection of the properties over three days, made detailed notes, perused documentary evidence, heard lengthy arguments from counsel and admitted no oral evidence.

The Subordinate Judge then passed a preliminary decree for redemption. The plaintiffs were allowed one month to deposit Rs. 18,999 (amount under Ex. A1) and Rs. 6,558-2-0 as compensation for improvements. This represented a substantial reduction from the commissioner's estimate of Rs. 22,063-14-0 to Rs. 6,558-2-0.

Defendants 1, 2, 4 and 5 appealed to the present court, limiting their claim on appeal to Rs. 10,000 (though details shown amounted to Rs. 12,466-10-0). The plaintiffs-respondents raised a preliminary objection that no appeal lay because the order was passed pursuant to the parties' joint memorandum, and therefore an appeal was barred under Section 96 C.P. Code.

Legal Issues Presented

  1. Whether the joint memorandum in which the parties (through their advocates) agreed to "abide by the decision of the court" after local inspection and perusal of documents constituted an agreement that made the Judge a "quasi-arbitrator" and thereby barred an appeal under Section 96 C.P. Code.
  2. Whether a memorandum signed only by the parties' advocates (and not by the parties themselves) could bind the parties so as to prevent an appeal.
  3. Whether dispensing with oral evidence and deciding the matter after local inspection and documentary review was a permissible procedural deviation that preserved the right of appeal, or an extra cursum curiae proceeding that extinguished the right to appeal.

Arguments of the Parties

Plaintiffs-Respondents' Arguments

  • The order of the Subordinate Judge was passed pursuant to the parties' joint memorandum agreeing to "abide by the decision of the court" after inspection and documentary perusal; therefore, as a consent decision the appeal is barred under Section 96 C.P. Code.

Appellants' Arguments

  • The court was not appointed to act as an arbitrator; the parties only agreed to dispense with oral evidence and to permit the court to decide after local inspection and examination of documents. That procedure remains within the ordinary jurisdiction of the court, and hence an appeal should lie.
  • A further point was that the joint memorandum was signed only by the advocates and not by the parties themselves; accordingly, the parties cannot be bound by it unless the court is satisfied the advocates had authority.
  • It was argued that, if any special power was conferred on the Judge (i.e., to act as quasi-arbitrator), that power should have been specifically mentioned in the memorandum.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Pisani v. Attorney General for Gibraltar (1874) 5 PC 516 Cited as an English authority on the effect of parties agreeing to abide by a judge's decision (quasi-arbitrator concept). Referred to as one of the English cases indicating the Judge may be made a quasi-arbitrator by agreement; used to support the view that such agreements can bar appeal.
In Re Durham County Permanent Benefit Building Society; Ex parte Wilson (1871) 7 Ch A 45 Cited as an English authority relevant to construing agreements to abide by a court's decision. Relied upon as part of the English case-law background for the proposition that a judge may be treated as quasi-arbitrator when parties agree to abide by his decision.
Nidamarthi Mukkanti v. Thammana Ramayya, ILR 26 Mad 76 A consent memorandum by which parties agreed to abide by the decision of the Court was construed by a Bench of this Court as making the Judge an arbitrator (quasi-arbitrator). Cited as a directly analogous Madras decision; the Court found great resemblance between that consent memo and the memo in the present case and applied the same construction.
Chengalraya Chetty v. Raghava Ramanuja Doss, 37 Mad LJ 100 : AIR 1919 Mad 150 Cited among authorities on how agreements to abide by a court's decision are to be interpreted. Listed as part of the body of case law on the subject; the Court grouped it with other authorities bearing on construction of such agreements.
Sankaranarayana Pillai v. Ramaswami Pillai, ILR 47 Mad 39 : AIR 1923 Mad 444 Cited for principles on interpreting agreements that might bar appeal; identified as laying down how such agreements should be looked into. Relied upon as authority for the correct approach to construing consent memos and whether they bar an appeal.
Venkata Somayajulu v. Venkanna, ILR 58 Mad 31 : AIR 1934 Mad 397 Headnote principle: if a proceeding is extra cursum curiae the decision is in the nature of a consent order and generally the right of appeal is barred; otherwise appeal lies unless there is a clear waiver. The quoted headnote from this case was applied as a guiding test: whether the proceeding was extra cursum curiae (bar appeal) or merely a procedural deviation (appeal preserved unless clear waiver).
Md. Ishaq v. Balmakund Lal, AIR 1929 All 116 Cited as part of authorities concerning agreements to abide by a court's decision. Referenced among the series of cases dealing with construction of such agreements; used to show diversity of authorities on the point.
Raghubir Saran Das v. Ramdas, AIR 1925 All 348 Cited among the cases discussing whether agreements to abide by a Court's decision bar appeals. Included in the list of authorities; the Court did not elaborate specific rule from this report beyond citing it as relevant precedent.
Kunjammal v. Rajagopala Aiyar, 1948-2 Mad LJ 291 : AIR 1949 Mad 267 Principle: A mere agreement to dispense with certain rules of procedure and evidence, without giving up the right of appeal, does not deprive parties of the right of appeal; whether appeal is barred is a question of fact depending on whether the agreement intended the Court to give a decision more in the nature of an award. The Court adopted and expressly approved the reasoning in this case, treating the question as one of fact to be determined from the circumstances and conduct of the parties; cited the case as authoritative for refusing to deprive parties of appeal unless intention to waive is clear.

Court's Reasoning and Analysis

The court proceeded step-by-step in its analysis:

  1. Binding effect of the joint memorandum and signatures: The court examined whether the fact that the joint memorandum was signed by advocates (and not by the parties themselves) made it non-binding. The Subordinate Judge had recorded that the parties were present during the three days of local inspection and cooperated with the inspection. The counsel appearing before the appellate court did not dispute that each advocate had the prior consent and approval of his client to sign the memorandum. Consequently, the court accepted that the advocates had instructions and treated the memorandum as effectively signed by the parties.
  2. Meaning of "abide": The court considered dictionary and authoritative definitions of "to abide" (Ballentine; Ramanatha Aiyar; Halsbury) and concluded that the phrase "will abide by the decision of the court" meant to obey, comply with or accept the court's decision without questioning its correctness or validity.
  3. Quasi-arbitrator concept: The court cited Halsbury's statement that when parties agree to accept the judge's decision as final they "constitute the Judge a quasi-arbitrator" and that the decision is unappealable. The court reasoned that by agreeing to abide by the judge's decision, the parties intended to accept and not question that decision.
  4. Examination of authorities and factual context: The court surveyed the authorities (both English and Indian) and noted a body of case law with differing outcomes depending on the facts. It highlighted the rule distilled from ILR 58 Mad 31 (AIR 1934 Mad 397) that if a proceeding is extra cursum curiae the decision is like a consent order and generally bars appeal; conversely, where there is only a procedural deviation and no clear waiver of appeal, appeal rights remain.
  5. Application of Kunjammal and factual determination: The court adopted the approach from Kunjammal v. Rajagopala Aiyar that whether the right of appeal is waived is a question of fact to be determined from the circumstances and conduct of the parties. Applying that test to the present facts, the court found it unusual for a subordinate judge to travel far from the courthouse and spend three days inspecting large tracts of arecanut and other gardens to value improvements—particularly where oral evidence, ordinarily necessary for valuing such trees, had been expressly waived. These facts, together with the joint memorandum and subsequent conduct, indicated that the parties intended the Subordinate Judge to act in the nature of a quasi-arbitrator.
  6. Rejection of appellants' jurisdictional argument: The appellants' contention—that the judge acted within ordinary jurisdiction and therefore an appeal must lie—was considered. The court rejected this contention on the factual basis that the parties' agreement and conduct effectively took the matter outside the ordinary jurisdictional procedure (extra cursum curiae), thereby making the judge a quasi-arbitrator and rendering the decision unappealable.

Holding and Implications

Holding: The appeal was dismissed. The court concluded that the joint memorandum and the parties' subsequent conduct constituted an agreement that the Subordinate Judge would decide the matter after local inspection and perusal of documents, effectively making him a quasi-arbitrator, and that the proceeding was extra cursum curiae so that an appeal to this Court was incompetent.

Implications: The direct consequence is that the Subordinate Judge's decision is binding on the parties and the present appeal cannot be entertained. The opinion frames the outcome as a factual determination: because the parties agreed to waive oral evidence and to "abide by" the judge's decision following extensive local inspection, they are taken to have given up their right to appeal in this case. The opinion does not purport to lay down a novel legal rule beyond applying and aligning with existing authorities; it treats the question primarily as one of fact-dependent application of established principles concerning consent memos and extra cursum curiae proceedings.

Show full summary ...

    Bambrana Guddappa Rai And Others v. Ramanna Banta And Others.

    1. The appellants in this appeal are defendants 1, 2, 4 and 5 in O. S. No. 200 of 1949 on the file of the Court of the Subordinate Judge of South Kanara who may be compendiously known as the mortgagees, while the plaintiffs 1 to 7 and defendants 24 to 26 represent the family of the mortgagors. The other defendants are tenants who-have been impleaded as necessary parties to the litigation. The action in the court below was for the redemption of a mortgage executed by the family of the plaintiffs in favour of the defendants' family evidenced by Ex. 1 dated 15-6-1909 for a sum of Rs. 1,899. The mortgage was usufructuary in character and the mortgagees were put in pos-session of the properties. It is not necessary for the purpose of this appeal to detail at any length the terms and conditions of the mortgage especially since in the court below the right of the plaintiffs to redeem Ex. A 1 was not questioned. The-main contest was with regard to the value of Improvements payable to the mortgagees in possession which according to their written statement amounted to Rs. 36290 and the main issues in the case related to the quantum of compensation for ascertaining which a commissioner had been appointed by the trial court who submitted his report. The report of the Commissioner dated 4-6-1950 is a lengthy one and it deals with various matters such as the number of trees in the different plots, their size and age and the value to be paid for them. On the whole the commissioner found that the value of the improvements on redemption would amount to Rs. 22063-14-0. Objections to this report were filed by defendants 1 to 5 as welt as by the plaintiffs. Whereas the defendants claimed enhanced value, the plaintiffs submitted that the commissioner's valuation of the improvements was very high. The memos of objection to the commissioner's report by the parties had been forwarded to the commissioner for his remarks and for his further report which he submitted on 22-7-1950. The various objections raised by the plaintiffs were adverted to and the commissioner submitted his remarks on them.

    2. In this state of things on 30-9-1950 the advocates appearing on both sides submitted a joint memo to the court which is to the following effect :

    "The parties submit that they will abide by the decision of the court on the issues raised in the suit, after local inspection and perusal of the documentary evidence in the case. They have no oral evidence to be adduced."

    sd. G. K. Govlnda Bhat, Advocate for the plaintiffs.
    sd. M. A. Kamath, Advocate for 6th defendant.
    Sd..... advocate for defendants 24 to 26.

    Mangalore 30-9-1950.

    From this, it is seen that neither the plaintiffs nor the defendants affixed their signatures to this joint statement but that their advocates on their behalf have signed and filed the Joint memo into the court. There was some dispute at the Bar as to whether the parties consented to the filing of this joint statement and the counsel appearing before us on both sides did not dispute that fact that each of the advocates who had signed the joint statement had the previous consent and approval of his client or clients for signing the joint memo and filing it into the court.

    We, therefore, take it that with the tacit and express consent of the parties the joint statement was filed by which the court was asked to make a local inspection and peruse the documentary evidence in the case before coming to a conclusion and the parties agreed to abide by that conclusion. Accordingly, the learned Subordinate Judge proceeded to the locality and stayed there for three days, inspected the various Items of properties thoroughly and made copious notes of his inspection. In the words of the learned Judge what happened was as follows :

    Eventually both the parties agreed by joint memo dated 30-9-1950 that they would abide by the decision of the court on these issues after local inspection and perusal of the documentary evidence in this case. This court thereupon inspected the properties for three days in the presence of the parties and their learned advocates and also heard elaborate arguments addressed by the learned counsel. No oral evidence was adduced by either party.
    The joint memorandum and the notes of local inspection made by the learned Subordinate Judge in the presence of the parties and their advocates on 26th, 27th and 28th of January 1951 form part of the record and the notes of inspection deal in extenso with the Various details of improvements. The learned Subordinate Judge thereafter heard the advocates on both sides in court at great length and scrutinised the documentary evidence in the case in the light of his local inspection. As stated already no oral evidence was let in.

    The learned Subordinate Judge thereafter delivered Judgment by which a preliminary decree was passed for redemption of the plaint A schedule properties, and the plaintiffs were allowed one month's time to deposit into court the Bum of Rs. 18999 representing the amount under Ex. A 1 and Rs. 6558-2-0 being the amount fixed towards compensation for the improvements effected by the defendants. The result of this preliminary decree is that the Commissioner's estimate of improvements, namely, Rs. 22068-14-0 was reduced to Rs. 5558-2-0 by the learned Subordinate Judge.

    3. Aggrieved by this decision, defendants 1, 2, 4 and 5 have preferred the present appeal, and here they have confined their claim only to Rs. 10,000, for which details have been furnished in the memorandum of appeal. Though details have been shown for Rs. 12466-10-0 the claim in the appeal is confined only to Rs. 10,000.

    4. When the appeal came on for hearing a preliminary objection was taken by Mr. G. K. Govinda Bhat for the plaintiffs-respondents, that no appeal lay for the reason that the order of the learned Subordinate Judge was passed as it were, on the consent of the parties and so under Section 96 C. P. Code the appeal is barred. Learned counsel for the appellants contended that the court had not been appointed as an arbitrator but that what his clients wanted was only to dispense with oral evidence in the case, leaving the court to decide the matter on a local inspection and after perusing the documentary evidence in the case. It is not as if the subject matter of the suit was taken outside the purview of the ordinary jurisdiction of the court by making the Judge an arbitrator but that only a portion of the procedure for an adjudication of the matter was dispensed with.

    5. The question now is, what is the Interpretation to be put upon the joint memo. A. further point was raised that since the joint memo was signed only by the advocates, the parties cannot be bound by it. We cannot countenance this argument for this reason : the learned Subordinate Judge himself states that during the three days of his local inspection in the interior of the district the parties were present and they co-operated with him In his local inspection.

    Since it is not disputed that the counsel signing the joint memo had instructions to do the same, we have to take it that the joint memo must be deemed to have been signed as It were by the par-ties themselves though actually their signatures do not appear on the face of it. What is the mean-ing to be given to the first sentence in the joint memo that "the parties submit that they will abide by the decision of the court on the issues raised In the suit", after local inspection and perusal of the documentary evidence in the case? A correct Interpretation of this statement would depend to a very large extent on the meaning to be put upon the word "abide,"

    6. In Ballentine's Law dictionary, 2nd Edn. the following meanings are given : "To abide" means to obey, to comply with, to perform, to exe-cute, to conform to, to abide the judgment or order of the court. In Ramanatha Aiyar's "The Law Lexicon of British India" the meanings given for the word "to abide" are to await to acquiesce in, to conform to, to accept as valid, to take the consequence of as in the phrase to abide by an award of an arbitrator, to perform, to execute, to conform to as in the phrase to abide by the judgment of a Court. In Halsbury's Laws of England, 2nd Edn., Vol. 1, (Lord Hailsham) at page 624, there is the following statement:

    "When in proceedings pending before the Court the parties agree to accept the Judge's decision as final it Is stated that they thereby constitute the Judge a quasi-arbitrator. The effect of such an agreement is that the decision of the Judge is unappealable and cannot be questioned In any way but the Judge is not thereby really placed in the position of an arbitrator and his- decision is not and does not in any way resemble an award."

    From these extracts it is clear that when the parties agreed to abide by the decision of the learned Subordinate Judge, their intention was to obey or to comply with it without; questioning its correctness or validity. If that is so, it is not open to anyone of them later on to say that the decision is not binding on him. The real position is as stated in Halbury's Laws of England Vol. I, the Judge is made a quasi-arbitrator though not bound by any of the inhibitions of the Indian Arbitration Act.

    7. According to Mr. t. Krishna Rao, learned counsel for the appellants, what the learned Subordinate Judge was asked to do is what is strictly within his jurisdiction and not anything beyond it and if the act of the Judge can be brought within the confines of Ms jurisdiction, then it should be deemed to be that of a Court, in which case an appeal would lie from it; but if what he has done is beyond the jurisdiction of the Court, then the Judge becomes an arbitrator and no appeal will lie against his decision. The power should, therefore, be specifically mentioned in the memo.

    As stated in some o! the cases on the subject, the expression used is whether the Court acted extra cursum curiae. In our view the learned Subordinate Judge has been made a quasi-arbitrator and therefore his decision, which Is not an award in the sense in which it is understood under the Indian Arbitration Act, will be binding on the parties. We need not consider at any length the English cases on the point but may refer to the decisions in Pisani v. Attorney General for Gibral-tar, (1874) 5 PC 516 (A) and In Re Durham County Permanent Benefit Building society; Ex parte Wilson, (1871) 7 Ch A 45 (B). In Nidamarthi Mukkanti y. Thammana Ramayya, ILR 26 Mad 76 (C), a similar memo by which the parties agreed to abide by the decision of the Court was construed by a Bench of this Court as an arbitrator. The exact terms of the document are:

    Both parties will abide by the decision of the Court that may be passed as it chooses after perusing the documents filed by both parties and all the records in the said suit and after measuring the sites and inspecting marks etc., which are thereon. Therefore both parties will abide by the decision which the Court may be pleased to pass as its final decision signed.....

    8. We are of the opinion that there is great resemblance between the consent memo filed in ILR 26 Mad 76 (C) and the joint statement filed in the present case;

    9. There has been a large body of case law interpreting such agreements sometimes as barring an appeal against the decision on such a consent memo and sometimes holding that an appeal lies against it. We may refer in this connection to the decisions in Chengalraya Chetty v. Raghava Ramanuja Doss, 37 Mad LJ 100 : (AIR 1919 Mad 150) (D); Sankaranarayana Pillai v. Ramaswami Pillai, ILR 47 Mad 39: (AIR 1923 Mad 444) (E); Venkata Somayajulu v. Venkanna, ILR 58 Mad 31 : (AIR 1934 Mad 397) (F); Md. Ishaq v. Balmakund Lal, AIR 1929 All 116 (G); Raghubir Saran Das v. Ramdas, AIR 1925 All 348 (H). How such agreements will have to be looked into and interpreted is laid down both in ILR 47 Mad 39 : (AIR 1923 Mad 444) (E) and ILR 58 Mad 31 : (AIR 1934 Mad 397) (P).

    In the latter case the headnote runs as follows:

    "If a proceeding is extra cursum curiae the decision is in the nature of a consent order and generally the right of appeal against it is barred. If on the other Hand, the proceeding is not extra cursum curiae unless there is a clear waiver of the right, the right of appeal will not be lost; in that case the person who contends that no appeal will lie must clearly show that the right has either expressly or by necessary implication been given up."

    Therefore what we have to decide is whether the parties intended to depart from the ordinary practice and constitute the Judge as a quasi-arbitrator.

    10. It is not necessary to traverse at length the various cases referred to above but we shall consider the recent decision in Kunjammal v. Ra-jagopala Aiyar, 1948-2 Mad LJ 291 : (AIR 1949 Mad 267) (I), where Rajamannar C. J. and Rajagopalan J. after considering the earlier cases have held as follows :

    "A mere agreement between the parties that the Court may dispense with certain rules of procedure, and evidence without giving up the right of appeal does not deprive the parties of the right of appeal but it is a question of fact in each case whether the circumstances merely amounted to deviation more or less from the ordinary procedure or whether the agreement between the parties was that the Court should give a decision more in the nature of an award than an adjudication on the evidence in the case, complete or incomplete and the intention can only be ascertained by the events which happened in a particular case."

    11. We are in entire agreement with the expression of opinion contained in this case. That being the case, the question is one of fact to be decided from the circumstances and conduct of the parties. It is unusual to request a subordinate Judge to proceed to a place far away from the Court house and make an inspection of large stretches of arecanut and other gardens for deciding the value of compensation payable and it is still more unusual that in the ordinary circumstances any Judicial Officer would spend three days of his working time inspecting the properties for the purpose of ascertaining the value of improvements.

    Since the parties agreed to conform to or abide by the decision arrived at by the learned Subordinate Judge after inspecting the suit properties, we have no doubt, whatever, that he was constituted something in the nature of a quasi-arbitrator. Ordinarily, it is not possible to fix the value of arecanut, cocoanut and other fruit bearing trees without oral evidence which has been waived in this case. It seems to us, therefore, that by their joint statement dated 30-9-1950. and their subsequent conduct the parties took the case outside the ordinary jurisdiction of the Sub-Court and that being the case it is a case of extra cursum curiae. In these circumstances an appeal to this Court against the decision of the Subordinate Judge is incompetent. The appeal fails and is dismissed.

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    Comments

    Bambrana Guddappa Rai And Others v. Ramanna Banta And Others.
    (May 2, 1956)