TAMBIAH, J.—Senanayaka v. Qamage
1963Present: T. S. Fernando, J., and Tambiah, J.
A. SENANAYAKA and another, Appellants, and H. GAMAGE
and another, Respondents
S. C. 6/1962 (Inty.)—D. C. Colombo, 43S50/M
Compromise of action—Terms duly recorded by Court—Memorandum in writing notnecessary—Meaning of word “ motion ”—Civil Procedure Code as., 9J, 408.
A settlement and compromise entered into by-the parties, notified to Courtand recorded by the Judge in the course of a trial is not invalid merely becausea memorandum in writing, embodying the terms of the settlement, is not filedwlion the terms of the settlement are rocorded by the Judge. There is norequirement that section 91 of the Civil Procedure Code should bo compliedwith when parties enter into a settlement under section 408.
Appeal from an order of the District Court, Colombo.
N.E. Weerasooria, Q.C., with W. D. Gunasekera, for the 2nd and 3rddefendants-appellants.
Ranganathan, for the plaintiff-respondent.
Cur. adv. vult.
February 6, 1963. Tambiah, J.—
The short point for decision in this appeal is whether a settlement andcompromise, solemnly entered into by the parties, notified to Court andrecorded by the judge, in the course of a trial, should be ignored merelybecause a memorandum in writing of the motion, embodying the termsof settlement, has not been filed after the terms of the settlement havebeen recorded.
The plaintiff brought tins action on an Indenture of Lease No. 7762,dated 27.7.1947., and prayed for the ejectment of the defendants fromthe premises described in the schedule to the plaint. The defendants,while admitting the signing of the Indenture of the Lease, averred thatthe plaintiff failed to deliver possession of the land and prayed for the
TAMBIAH, J.—Sc.nana.yaka v. Gamage
refund of the sum of Rs. 420 which, he alleged, was paid at the executionof the deed of lease. Under the Indenture of Lease, the defendants wereentitled to put up certain buildings and possess the same for a particularperiod. At the trial, after the plaintiff and one of the witnesses had givenevidence, the parties arrived at a settlement which wras notified to Courton 10.0.1960, and was duly recorded by the learned District Judge.
The terms of the settlement stated, inter alia, that the second and thirddefendants consented to ejectment without costs being entered in favourof the plaintiff in respect of the land depicted in Plan No. 656 dated24.2.1960. Writ was not to issue till 31.3.1961. If the second andthird defendants handed over vacant possession of the premises to plaintiffon or before 31.3.1001, the plaintiff undertook to pay the second andthird defendants compensation for the building standing on the premises,depicted in the said plan, on an amount assessed by an independent; valuer nominated by Court. The parties undertook to accept suchvaluation as final and conclusive. The plaintiff also undertook to paythe amount of such valuation within a period of three years from the dateof it being notified by the valuer. Tho parties further agreed that thevaluation should be done by one Mr. P. H. Wijesinghe.
Mr. Wijesinghe filed his valuation report, dated 7.2.1061, and theplaintiff, who was dissatisfied with the said valuation, filed objections,dated 28.3.1061, in which he averred, inter alia, that Mr. Wijesinghe’svaluation was grossly inflated and that he had not acted fairly andjustly. It is not suggested that there was lack of consent by the partiesto the terms and conditions of the settlement or that such terms "werevague. At the inquiry, plaintiff’s counsel led no evidence to show thatthe valuation was unfair, but he raised the objection that since no memo-randum in writing, as required by section 01 of the Civil Procedure Code,
' had been filed along with the settlement, the settlement should beignored and no decree should be entered on it. The learned District• Judge, after hearing parties, accepted the contention of the plaintiff’scounsel and held that he would ignore the settlement entered into by theparties and re-fixed the matter for trial. The second and third defendantshave appealed to this Court from the said order.
Section 408 of the Civil Procedure Code (Cap. 101) enacts :
“ If an action bo adjusted wholly or in part by any lawful agreementor compromise, or if the defendant satisfy the plaintiff in- respect tothe whole or any part of the matter of the action, such agreement,compromise, or satisfaction shall be notified to the court by motion madein presence of, or on notice to all the parties concerned, and the courtshall pass a decree in accordnace therewith, so far as it relates to somuch of the subject matter of the action as is dealt with by the agree-ment, compromise, or satisfaction. ”
The appellant’s counsel submitted that there lias been sufficientcompliance of the provisions of section 408 of the Civil Procedure Codewhen the terms of settlement were duly recorded by the Court. He
TAMBIAH, J.—Senanayalca v. Gamage
urged that the learned District Judge erred in ignoring the terms andconditions of the settlement, which were finally agreed upon by theparties. He further contended that there is no provision in section 40Sof the Civil Procedure Code for the filing of a written motion when theterms of a settlement are recorded by the judge.
The respondent’s counsel, on the other hand, urged that the word“ motion ” in section 408 of the Civil Procedure Code must necessarilymean written motion ; that the only provision governing filing of motions iscontained in section 91 of the Civil Procedure Code and as no such motionwas filed, the settlement was null and void. Alternatively, ho urgedthat even if the word “ motion ” should be construed as an oral motion,nevertheless, section 408 must be read along with section 91 of the CivilProcedure Code and a written memorandum of the motion should havebeen filed before the settlement could be given any efficacy and a decreeentered. In support of his arguments, the respondent’s counsel cited theruling of this Court in Wijewardena v. Lenora;l ,Cornelius Perera v. LeoPer era2 and Ukku Amma v. Paramanathan3.
Tlie word “ motion ”, in section 408 of the Civil Procedure Code, isnot defined in the Code. In legal phraseology, it means " an applicationmade to a court or judge viva voce in open court. Its object is to obtain anorder or rule, directing some act to be done in favour of the applicant ”(vide Stephen’s Commentaries, cited in Mozley and Whiteley LawDictionary (5th Edition) by F. G. Neave p. 210). Having regard to itsmost natural meaning in the context, we are of the opinion that thomeaning of the word “ motion ”, in section 408 of the Civil ProcedureCode, cannot be whittled down to mean a written motion.
Further, when parties finally settle their disputes and notify the termsof. their compromise to Court, the Court is bound to enter the terms oftheir settlement and then pass a decree (vide section 408 of the CivilProcedure Code). This is a step in the course of regular procedurespecifically provided for by tho Civil Procedure Code and is not a stepincidental to the proceedings. Consequently, there is no requirementthat section 91 should be complied with when parties enter into a settle-ment under section 408 of the Civil Procedure Cede. Section 91 of theCivil Procedure Code becomes relevant only in applications made to thecourt- in the course of an action, incidental thereto, and not a step in theregular procedure. A Court is bound to take certain steps in a regular proce-dure, such as filing of plaints, answers, replications, summoning of witnessesand proceeding with the trial. A step required to be taken by a courtby the provisions of the Civil Procedure Code is not an incidentalstep in the course of the proceedings, (vide observations of Bonser C. J.in Peria Carpen Chetty v. Kiri Banda Arachchi and Dingiri Banda*.)Even the filing of a list of witnesses is a regular step in an action. Thepractice of filing motions or memoranda in matters which are steps inregular procedure has been deprecated by this Court (Ibid at p. 6G).
1 (195S) 60 N. L. R. 457.* (1060) 62 N. L. R. 413.
* (1959) 63 N. L. R. 306.
4 (1902) 3 Broione Reports 61 at 66.
T A MB I AH, J.—Senanayaka v. Gamage
The word “ motion ”, even as used in section 91 of the Civil ProcedureCode, cannot, in the light of its context, be read to mean written motion,for, if in the same section the words “ written motion ”'are substitutedfor the word “ motion ”, then the provisions contained in the said sectionbecome redundant and meaningless. All that the section requires is that“ a memorandum in writing of such motion shall be at the same timedelivered to the Court ”. A distinction must, therefore, be drawnbetween a “ motion ”, which is an oral application made to court, and a“ memorandum in writing ” of such motion in section 91 of the CivilProcedure Code. The contention of the respondent’s counsel that theword “ motion ”, as used section 91 of the Civil Procedure Code, meanswritten motion, also fails.
Section 40S of tho Civil Procedure Code docs not require that a memoran-dum in writing of the agreement or compromise should be filed. Itmerely enacts that the agreement or compromise “ should he notified tothe Court by motion made in the presence of, or on notice to, all partiesconcerned
Where the terms of the settlement or compromise are ambiguous orvague, the parties are not Avithout remedy. In such cases our courtshave proceeded with the trial. The cases cited by the respondent’scounsel establish this salutary principle, but are distinguishable from thefacts of the instant case. In Punchibanda v. Ptmchibanda1 a settlemententered in Court was set aside on the ground that it was vaguely worded.In the course of his judgment, Soertsz J. remarked (vide at p. 3S3) thatsection 40S of tho Civil Procedure Code, road with section 91, requires acertain formality to be observed in arriving at a settlement. The Court,in that case, had no occasion to analyse section 408, and, consequently,the views expressed by Soertsz J., were merely obiter..
Even if section 408 of the Civil Procedure Code should be read alongwith section 91 of the Civil Procedure Code, the better view seems to bethat the provisions of section 91 are only directory and not mandatory.In.Wijewardene v. Lenora (supra) Basnayake C.J., took the view that thesaid provisions are mandatory while Sinnetamby J., said that they aremerely directory. Sinnatamby J., in the course of his judgment said(at p 467) : “ In regard to the scope of sections 80 and 91 of the CivilProcedure Code, I agree that where there is both the opportunity andthe time available an application for the postponement of the hearingshould always be made by motion but there are occasions when thiscamiot be done in such cases the cursus curiae, if I may speak frompersonal experience, has been to permit an application to be madeore tenus. ” The case was decided on other grounds and, consequently,the opinions expressed by them on this matter are obiter.
In Cornelius Per era v. Leo Per era2 a Bench of three judges held that acompromise or agreement, which was made on the ground of mistake,where one party knew of the mistake and the other did not, should beset aside. Basnayake C.J., said (at p. 419) : “ There was not even an
1 (1941) 42 N. L. R. 3S2.
* (1900) 62 N. L. R. 413.
TAMBIAH, J.—Senanayaka v. (Damage
attempt to comply with the requirements of section 40S. The Code(s. 91) requires that a memorandum in writing of every motion should bedelivered to the Court at the time it is made by pleader or counsel. Nosuch writing has been tendered by counsel nor is it clear from the recordthat the parties gave their mind to evey part of what has been recorded
by the trial judge” The learned Chief Justice, however, had no
occasion to analyse section 408 of the Civil Procedure Code. Sansoni J.reserved his opinion on the interpretation of section 408. He said(vide at p. 422) : " I would only add that I am not prepared to whittledown the powers of counsel to enter into settlements. It has often beenheld by this Court that counsel has, by reason of his retainer, completeauthority over the action and the mode of conducting it, including anabandonment of it. He can compromise in all matters connected withthe action and not merely collateral to it, even contrary to the instructionsof his client, unless the opposite side had knowledge that he was actingcontrary to authority The decision, in this case, rested on the principlethat where there has been a mistake in entering into terms of settlement,then such a settlement should not be enforced by a court of law.
In Ulchu Vmmav. Paramanathan1 Weerasooriya J., vacated a settlemententered into, in the course of a trial, where there was nothing on therecord to show at whose instance the settlement was arrived at. Hestated (at page 308): “ Section 408 of the Civil Procedure Code providesthat an agreement or compromise shall be notified by motion. Undersection 91, where the motion is by the advocate or proctor for a party, amemorandum in writing of such motion is required to be at the same timedelivered to court. Not only have these provisions not been compliedwith, but there is nothing in the record to show at whose instance thatsettlement was arrived at.”
Section 408 of the Civil Procedure Code requires that both partiesshould agree to the terms of settlement and that such an agreementshould be notified to Court, (vide Eastern Hardware Stores v. Fernando2;Meis Singho v. Josie Per era?.) In the instant case, the parties haveunambiguously notified to Court their terms of settlement, and, conse-quently, it could be distinguished from Cornelius Perera v. Leo Perera(supra) and Uklcu Umma v. Paramanathan (supra).
It is unnecessary for us to add fetter to the freedom of partiesto compromise their action by further requiring them to file a writtenmotion, the terms of which have already been solemnly stated to Courtand duly recorded.
For these reasons, we set aside the order of the learned District Judge,dated 30.11.61., and direct that decree be entered in terms of settlementarrived at between parties on 19.9.1960. The appellant is entitled tocosts of appeal and costs of inquiry held on 16.11.1961.
T.S. Fernando, J.—I agree.
Order set aside.
1 (1959) 63 N. L. R. 306.2 (1956) 58 N. L. R. p. 568 at 570
(1929) 31 N. L. R. 168.
D. A. SENANAYAKA and another, Appellants, and H. GAMAGE and another, Respondents