SABAPATHY v. DUNLOP et al

024-NLR-NLR-V-37-SABAPATHY-v.-DUNLOP–et-al.pdf


Sabapathy v. Dunlop.
113
1935
[In Revision]
Present: Akbar S.P-J. and Koch A.J.SABAPATHY v. DUNLOP et al.
C. Avissawella, 1,636 and 1,637.
Restitutio in integrum—Judgment entered by compromiseApplication to
set aside decree—Fear and surprise—Powers of Supreme Court—-Ciin!Procedure Code, s.. 408 and 752—Courts Ordinance, s. 40.
Where an action has been adjusted by agreement or compromiseunder section 408 of the Civil Procedure Code, the Supreme Court haspower to set aside, by way of restitution or revision, a judgment enteredin terms of the section, on the ground of fear or mistake.
A threat from a Judge to dismiss a plaintiff’s case unless he agreed tothe terms of settlement would amount to fear.
IHIS was an application to set aside by way of revision or restitution
the orders in two cases entered of consent between the plaintiff and
the respective defendants in the actions.
The settlement was entered into in Court in the presence of the DistrictJudge and was signed by the plaintiff, the defendants, and the District
The facts are fully stated in the judgment of Akbar SJPJ.
N. Nadarajah (with him P. Navaratnarajah), for plaintiff, petitioner.—Hus is an application by way of revision or in the alternative by way ofrestitutio in integrum, to have an order of the District Judge of Avissa-wella set aside. The settlement which is recorded was brought aboutby pressure and surprise, and an order in pursuance of such a settle-ment can be set aside. (Swinjen v. Swinfen1; Neale v. Gordon Lennox";Fernando v. Singhoris ’.) A trial Judge ought not to take part in effectinga settlement between parties—section 408 of the Civil Procedure Code.He has judicial functions to perform with regard to the terms ofcompromise.
There is ample authority for the proposition, that where a Judge mis-conducts himself, the position can be rectified and order set aside bya Judge of the Appellate of Superior Tribunal. (2 White and Tudor’sLeading Cases in Equity 708; Reg. v. Justices of Cumberland’, Reg. v. Millageet al.'; Queen v. Farrant'; Zemindar of Tuni v. Binnaya1837, Morgan’sDigest 143.)
This can be done either by restitutio in integrum (Vander Linden, bk. 1,tit. 12, s. 1; Voet, bk. IV., tit. 2; 2 Van Leeuwen 338, Censura Forensis, bk. IV.rclause 11, section 10; Digest, bk. IV., tit. 2—title 6 Monro’s Trans.) or byway of Revision—see section 753 of Civil Procedure Code, section 357of Criminal Procedure Code, sections 21 and 40 of Courts Ordinance.Counsel also cited Appuhamy v. Weeratunga'- Cassi Lebbe v. Dias’.
1 2 D. G. i J. Chancery Reports 386; 1 Revised Reports 490.
(1902) A. C. 469.•20 Q. B. D. 58.
26 N. L. R. 469.i 23 Mad. 155.
68 L. T. N. S. 491.« 23 N. L. R. 467.
*40 L.T. W.'S. 748.>SK. L R. 319.
T
Judge.
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AKBAR S.P.J.—Sabapathy v. C unlop.
H. V. Perera (with him E. F. N. Gratiaen), for defendant, respondent.—The plaintiff’s version of the incidents which took place on the trial dateis false, and in any event he would not be entitled to relief inasmuch ashe admits that he agreed to settle this case in the hope of pleasing thetrial Judge and thereby obtaining an undue and improper advantage in theconnected case.
Assuming that the plaintiff’s version is accepted; the Court has nojurisdiction to interfere by way of revision under section 753 of the CivilProcedure Code. The decree entered by the trial Judge in pursuanceof the compromise effected between the parties under section 408 wasneither “ illegal ” nor “improper ”, and cannot therefore be set aside.It was in fact the duty of the Court to pass decree giving effect to thecompromise, provided that the terms of such compromise were legal, asthey undoubtedly are.
The trial Judge was competent to enter decree in terms of the compro-mise; he was not “ personally interested ” in the action within themeaning of section 90 of the Courts Ordinance, even if the plaintiff’sversion be true, which we deny.
The plaintiff is not entitled to relief by way of restitutio in integrum.No allegation of fraud or improper conduct is alleged against the re-spondent personally, and it would be contrary to public policy to entertainallegations of this nature against the Judges who heard the suit. What-ever relief may be open to the plaintiff in a separate action against theJudge by way of damages, the regularity of the Proceedings in thepresent action as against the respondent cannot be challenged.
Relief by way of “restitutio in integrum” is open to a party on theground of fear only in cases where he can show that the “ fear ” allegedis caused by present or future danger of a substantial evil which wouldexclude all notion of consent. (Voet, bk. IV., 1, 26 and IV., 1, 11-14.)Fear of an adverse result in a connected litigation would not besufficient.
Cur. adv. vult.
May 21, 1935. Akbar S.P.J.-—
This is an application by the plaintiff in D. C. Avissawella, Nos. 1,636and 1,637, by way of revision or in the alternative by way of restitutio inintegrum to, set aside two orders in the two cases above mentioned whichhad been entered into of consent between the plaintiff and the respectivedefendants settling these two cases on August 14, 1934. On December 21,1933, the plaintiff who was the Government District Medical Officer ofKarawanella in charge of the Government hospital there, an officer of thefirst grade in the Department of Medical and Sanitary Services with 22years of service in that department, filed four cases, viz., 1,634, 1,635,1,636, and 1,637 in the District Court of Avissawella claiming Rs. 50,000as damages from each defendant in the respective cases for allegeddefamation. In case 1,635 the defendant, Mr. G. Huntley, was theSuperintendent of Vincit estate at the time material to the case andhe and his wife were injured in a motor car accident on January 27,1933, and were treated by the plaintiff at the Government hospital.
AKBAR S.P.J.—Sabapathy v. Dunlop.
115
Mr. Huntley was dissatisfied with the treatment of the plaintiff and onFebruary 13, 1933, he wrote the following letter to the Director of Medicaland Sanitary Services : —
“ February 13th, 1933Colombo.
The Director of Medical and Sanitary Services, Colombo.
Dear Sir,—I have to make a very strong complaint against the negligenceand incompetence of the District Medical Officer at Karawanella. OnFriday, the 27th ultimo, after a very severe car smash on Panawatte estate,my wife and 1 and the driver were conveyed by Mr. Urquhart of Panawatteestate in his car to Karawanella Hospital, neither of us being able to move.We arrived at the hospital at 8 p.m., and the D. M. O. after a very perfunctoryexaminationpronounceddefinitelythat nobones were broken, and without
any suggestion of an X’ray examination in Colombo put us in charge of theActing Matron, in the paying ward, and actually intimated that we mightleave on the following morning. We stayed two nights as my wife was toounwell to travel, the D. M. O. making no examination of any sort duringthat period. On the 7th instant, being able to walk slowly, I took my wife,who complained of severe pains in the shoulder, to Colombo and saw Dr.A, M. de Silva. He at once ordered an X’ray photograph, which not onlydisclosed a fractured arm but a fracture of the pelvis, as well as in my owncase a fracture below the shoulder. Dr. A. M. de Silva will, I know, bepleased tofurnish fullparticulars. Mr. Urquhart of Panawatte estate can
also corroborate any statement re the D. M. O’s treatment at KarawanellaHospital. Icannot toostronglycondemnthe attitude of the D M. O.
whose oneexaminationat nightoccupiedonly two or three minutes and
thereafter took no interest in us whatever, merely prescribing Dead Lotionand the usual liniments and leaving everything to the Acting Matron. Mydriver was not even given an antitetanus injection, though X insisted on itfor ourselves. Both my wife and I are amazed at such behaviour, and Ihope you will take strong action in the matter.
(Sgd.) G. Huntley.”-
It is this letter which is the subject-matter of case No. 1,635: A copyof this letter was sent to Mr. B. M. Selwyn, the defendant in caseNo. 1,634 in his capacity as Chairman of the Kelani Valley Planters’ Asso-ciation of which Mr. Huntley, Mr. Dunlop (defendant in case No. 1,636)and Mr. Bentley-Buckle (defendant in case No. 1,637) are members.Mr. Huntley’s letter was discussed at a meeting of the Kelani ValleyPlanters’ Association on February 23, 1933, when a resolution wasproposed by Mr. Dunlop and seconded by Mr. Bentley-Buckle. Thecause of action alleged against Mr. Selwyn was the publication of Mr.Huntley’s letter to the Director and the cause of action against Mr.Dunlop and Mr. Bentley-Buckle was not only the publication of thisletter but also the use of certain words and expressions by them in theiraddresses.
All the four defendants filed answers pleading truth as regards thefacts and fair comment as regards opinion arid privilege. All the fourcases were fixed for trial for the same day but case No. 1,635 was triedfirst, the other cases being postponed for the adjourned dates. OnAugust 10, 1934, the defendants in cases Nos. 1,636 and 1,637 applied towithdraw their pleas of truth and fair comment, thus restricting theirdefence only to privilege, which motion was allowed on August 14, 1934.
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AKBAR S.P.J.—Sabapathy v. Dunlop.
■When case No. 1,636 was taken up for trial the Judge refused the appli-cation of plaintiff’s counsel for the costs incurred by the plaintiff ingetting ready for trial on the pleas of truth and fair comment. CaseNo. 1,635 against Mr. Huntley was not over on August 14, 1934, forwhich date after all the evidence had been recorded the case was standingover for Counsel’s address. On August 10, plaintiff put in a motionfor the postponement to a later date than August 14, as his senior counselwas engaged in another case, which application was refused. Thejournal entry on August 14, 1934, in case No. 1,635 reads as follows: —“ It is agreed that the addresses in this case should be heard after theevidence in cases Nos. 1,634, 1,636, and 1,637 ”.
Case No. 1,634, i.e., against Mr. Selwyn was however setttled, the termsbeing as follows : —
“ In the District Court of Avissawella.
Dr. C. Sabapathi of Karawanella Hospital Plaintiff.
No. 1,634.Vs.
B. M. Selwyn, Justice of the Peace and Unofficial .Police Magistrate,Udapolla, Dehiowita . . .’ Defendant.
The parties hereto move to file of record the following terms of settlement: —
The defendant expresses regret at the publication by the Press of the dis-cussion which took place at the Meeting of the Kelani Valley Planters’Association held on the 23rd day of February, 1933, at Taldua, on Mr. Huntley’sletter dated the 13th day of February*, 1933, to the Director of Medicaland Sanitary Services. In view of the fact that the defendant’s connectionwith this matter has always been in his official capacity and not in his per-sonal capacity, the defendant agrees to withdraw the allegations of fact inhis answer as filed. The defendant further agrees to pay to the plaintiffRs. 250 "*by way of costs, and in view of the premises the plaintiff agrees towithdraw his claim for damages made against the defendant.
Dated this 14th day of August, 1934.
Witness to the signature and identity ofDr. C. Sabapathi, the plaintiff above named.(Sgd.) —.
Witness to the signature and identity ofB. M. Selwyn, the defendant above named.(Sgd.) .
(Sgd.) C. Sabapathi,Plaintiff.
(Sgd.) B. M. Selwyn,Defendant.
Proctor, S C., Colombo.(Sgd.) .
Proctor, S. C.”
It was signed by the plaintiff and defendant and the two proctors.Case No. 1,636 now before me was then taken up and plaintiff’s counselread the evidence of certain witnesses already recorded in 1,635 as partof his case consent to prove the publication and closed his case. Mr.Dunlop gave evidence in defence and the case was adjourned for lunch.After lunch the case was settled and the following is the memorandumof settlement: —
D. c. l. 636.
In the District Court of Avissawella.
August 14, 1934
Memorandum of Settlement.
In the final decision in case No. 1,635, D. . C. Avissawella, if judgment isentered for this plaintiff against Mr. G. Huntley it is agreed that the defendantin this case should pay plaintiff Rupees Five hundred (Rs. 500) as damagesand Rupees Two hundred (Rs. 200) as costs.
AKBAR S.P.J.—Sabapathy v. Dunlop.
Ill
g. That the defendant should withdraw by written motion the statementshe made at the meeting of the Kelani Valley Planters’ Association on23rd February, 1933, and referred to in paragraph 7 of the plaint.
3. It is further agreed that if the defendant does not so withdraw thesaid statements he should pay an additional sum of Rupees one thousand as damages.It is further agreed that if in the final decision the plaintiffs actionNo. 1,635, D C. Avissawella, is dismissed—this action should be dismissedwith costs fixed at Rupees Two hundred (Rs. 200) payable to the defendant.
Call case after the final decision in case No. 1,635, D. C. Avissawella, fordecree to be entered in terms of the above settlement.
(The plaintiff desires it to be entered of record that he agreed to thissettlement as he brought this action not with a view to make money but tovindicate his honour and reputation as a Government Medical Officer andMedical Practitioner.)
(Sgd.) C. Sabapathy, Plaintiff.
(Sgd.) J. D. Dunlop, Defendant.-
(Sgd.) P. Vytilxncam,Additional District Judge.
It was signed by the plaintiff and Mr. Dunlop and also the DistrictJudge. Case No. 1,637 was also settled on similar terms, the memoran-dum being signed by the plaintiff, Mr. Bentley-Buckle, and the DistrictJudge. It should be noted that these settlements were entered into inCourt in the presence of the District Judge and the Proctors and Advo-cates, of the respective parties and in both the memoranda there is thisnote above the signatures of the parties.
“ The plaintiff desires it to be entered of record that he agrees to thissettlement as he brought this action not with a view to make moneybut to vindicate his honour and reputation as a Government MedicalOfficer and Medical Practitioner.”
Counsel then began to address the Court in case No. 1,635 on August15 and 16, and the case was adjourned for September 1, 1934, for judg-ment, on which day judgment was given in favour of the plaintiff againstMr. Huntley for Rs. 10,000 damages and costs. On the same dayplaintiffs proctor moved for issue of writ to recover the amount whichwas allowed. The defendant offered security and the writ was stayedon September 8, 1934, on which day the defendant filed his petition ofappeal and the appeal to this Court is pending. On November 9, 1934,the plaintiff filed a motion with affidavits asking that the settlementorders made in cases Nos. 1,636 and 1,637 should be set aside by way ofrevision or restitutio in integrum on the ground of surprise and fear orpressure and that the cases should be sent back for.trial in due course.The plaintiff’s affidavit sets forth his own version of the events afterthe luncheon interval which led to the signing of the terms of settlement.There are counter affidavits from the two defendants traversing plaintiff'sversion. At this stage I shall assume the correctness of plaintiff’saffidavit as regards the incidents which led to the settlement of the twocases. The plaintiff is, as I have already stated, a Government MedicalOfficer of the first grade with over 22 years’ service in the GovernmentDepartment. He was in charge of the district hospital, and is a Bachelorof Medicine .and Master of Surgery of the Madras University; he is also
118
AKBAR S.P.J.—Sabapathy v. Dunlop.
a Licentiate of the Royal College of Physicians, London, and a Memberof the Royal College of Surgeons, England. So that it will be seen thatthe plaintiff is not air illiterate person, but a person of culture and edu-cation. He is also a member of a learned profession, trained to meetemergencies and also trained to appear in Court to give evidence incriminal cases in his capacity as Judicial Medical Officer as the Govern-ment expert. He was also the head of the local hospital. The settlementwas signed by him in Court in the presence of his own advocate andproctor, both of whom belong to the same nationality as his. He hadalready settled the case against Mr. Selwyn by withdrawing his largeclaim for Rs. 50,000 damages on Mr. Selwyn expressing regret for thepublication and withdrawing the allegations of fact in the answer andon payment of Rs. 250 by way of costs ; thus emphasizing the end hehad in view which was afterwards specially incorporated in the lastparagraph of the memoranda of settlement in cases Nos. 1,636 and 1,637at his request, namely, that he brought the actions not to make moneybut to vindicate his honour and reputation. According to the termsof settlement he was to get Rs. 500 as damages and Rs. 200 as costs andthe defendants were to withdraw the statements made by them at themeeting of the Kelani Valley Planters’ Association meeting on February23, 1933, on pain of a penalty of a further sum of Rs. 1,000 each asdamages if these statements were not withdrawn. These paymentswere to depend on the final decision of case No. 1,635, i.e., if judgmentwas finally entered for plaintiff against Mr. Huntley, the terms abovementioned were to bind Messrs. Dunlop and Bentley-Buckle; but ifplaintiff’s action against Mr. Huntley was dismissed decree was to beentered dismissing plaintiff’s actions Nos. 1,636 and 1,367 with Rs. 200as costs.
There seems to be nothing unreasonable on the face of these settlements,in' view of the fact that the plaintiff had already settled his case againstMr. Selwyn, under which settlement he withdrew his whole claim fordamages and got nothing in respect of it, on Mr. Selwyn expressing regretand withdrawing his plea of truth in his answer and he was content withthe sum of Rs. 250 as costs. Both Mr. Dunlop and Mr. Bentley-Bucklehad withdrawn their pleas of truth and fair comment and had confinedthemselves to the one defence of privilege. They were to withdraw theirstatements made at the meeting on pain of paying a further penalty ofRs. 1,000 each.. These terms were in keeping with the avowed intentionof plaintiff that he was out not to make money but to vindicate hishonour. There is nothing unreasonable in these terms being conditionalon the result of 1,635; for if Mr. Huntley won his case it would meanthat Mr. Huntley was justified on the facts in writing the letter complainedof to the Director. Such a finding would have a serious effect on theresult of cases Nos. 1,636 and 1,637.
1 have considered the grounds put forward by the plaintiff in hisaffidavit to prove that he was taken by surprise and was put into fearby the action of the District Judge in drawing up the terms of thesettlements in the circumstances set forth in his affidavit and I have nodoubt in my mind that on these facts the plaintiff has not made out a
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case of surprise or fear or pressure or all three combined which willjustify me in setting aside the orders and sending the two cases Nos. 1,636and 1,637 for trial.
According to the plaintiff's affidavit after the luncheon interval case1,634 having been already settled the trial Judge inquired whethercase 1,636 could not be settled and counsel for the defendant said thathis clients in 1,636 and 1,637 were each prepared to pay Rs. 500 asdamages and Rs. 100 as costs. The plaintiff was unwilling to acceptthis compromise owing to the inadequacy of the terms; upon which theJudge is said to have remarked : “ Suppose I give Rs. 5 damages andcosts in that class, what will you get ”. This could only mean that theJudge was referring to the uncertainty of litigation and that it waspossible that the plaintiff might not get Rs. 500 as damages and mighteven get Rs. 5. The Judge was clearly referring to case No. 1,636 thenbefore him and he could not have referred to case No. 1,635, which casehad been put off for counsel’s address at the time. But in the affidavitfiled by the plaintiff he says he understood the Judge to refer to caseNo. 1,635 and that he regarded this as a threat of what the Judge in-tended to do in case No. 1,635 upon the result of which the terms ofsettlement in 1,636 and 1,637 were made to defend and that throughfear of incurring the Judge’s displeasure he reluctantly and unwillinglyput his signature to the terms of settlement. This shows that far fromthere being any surprise in the matter of the settlement plaintiff deli-berately put his signature to the terms of settlement in cases Nos. 1,636and 1,637 in the hope that his willingness to settle these cases would puthim in a favourable position in the estimation of the Judge when he cameto deal with plaintiff’s main claim against Mr. Huntley in case No. 1,635.As I have said the learned trial Judge could not have meant his remarkabout the Rs. 5 to be taken as a veiled threat regarding the fate of 1,635.He was only referring to the uncertainty of the result of a trial, whenplaintiff’s counsel commented on the inadequacy of the terms of settle-ment offered in 1,636 and 1,637. Plaintiff’s affidavit shows that therewas a discussion in Court between the counsel and the Judge and thatit was the Judge who increased the costs from Rs. 100 to Rs. 200. Theplaintiff remarked on the words “ final decision ” in the terms of thesettlement and the Judge assured him that “ final decision. is final deci-sion ”. The last note added to the terms of the settlement referred toby me, and apparently inserted at the request of the plaintiff also showsthat there was a discussion of the terms. The plaintiff signed the termsin the presence of his lawyers and after consuitihg them. Ordinarily aJudge does not take part in the discussion of the terms of a settlementand the turn that these cases have taken shows the inadvisability of anysuch participation. But the immediate question I have to decide iswhether these orders should be set aside on the two grounds allegedwhen they have been signed by the plaintiff on the advice of his lawyerson August 14, 1934, and when he allowed an interval of three months toelapse between August 14, 1934, and November 9, 1934, the date of hismotion now before us, long after he had heard.the result of case No. 1,635.It is true that he has filed supplementary affidavits after this mattercame up before us, stating that he had asked his counsel to advise him
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on the settlement orders, as he had been made to sign them by the pres-sure of the District Judge; but there is no affidavit from either Mr. R. L.Pereira, his senior counsel, or from Mr. Gnanaprakasam, his secondadvocate. It may be as stated by him that he consulted anotheradvocate regarding the steps that should be taken to vacate the com-promises, but the fact remains that he allowed an interval of nearlythree months to elapse before these papers were filed. The long intervalbetween the settlement orders and the filing of these papers affectsseriously the position of the defendants in 1,636 and 1,637. If theplaintiff with his counsel near him was really in the position of beingsurprised and being forced to agree to a settlement which he would neverhave accepted, I cannot understand why a refusal to take part in theproposed settlement was not peremptorily conveyed to the Judge at thevery beginning. But instead of doing this he showed unwillingness asthe terms were inadequate and gradually further terms were added tothose offered at the beginning. The real reason why he signed the orderswas what I have indicated above, and his whole conduct was guided atthe time by a consideration of the possible result of the compromise oncase No. 1,635, which the Judge could never have had in mind. Hisown affidavit shows the mentality of the plaintiff and negatives thetheory of surprise and pressure now put forward. The disingenuousnessof his affidavit is shown by his entire omission to refer to the settlementof case No. 1,634.
I have not taken into consideration the affidavits put in by the defend-ants which give quite a different version of the incidents and in thisview it is not necessary for me to inquire as to the truth or falsity ofeither version. It is also really not necessary for me to discuss thefurther questions of law argued before us as regards the jurisdiction of-this Court to entertain this application, but as the point has been arguedbefore us by counsel on both sides I think I should indicate briefly myown views on this question.
The application to set aside the order of settlement has been made inthe alternative either by way of the revisionary powers of this Court orby way of restitutio in integrum. In my opinion this Court has thepower to set aside the order either by way of restitution or revision, ifgood grounds are shown for the interference of this Court.
In Voet, bk. IV., tit. 6, cl. 17 (Sampson’s Trans, p. 105) there is thefollowing passage: —
“ Further if a particular judgment has been consented to by theparties to the suit, as it will not then be improper for the judge todecide according to the wish of the parties, without further hearing, soif the judgment is given by a Court of not supreme jurisdiction, thereis no reason why restitution should not be allowed against it, if graveprejudice is shown to have been incurred by it. For if restitutionis applicable against mutual agreements ‘ because of laesio enormis,and the authority of a matter decided by a judge of not supremejurisdiction is not so great as to put a stop to relief by restitutionshould a just cause of restitution appear, even in cases in which the
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judgment has been given after the fullest consideration; it followsthat, whether we regard the agreement of the parties or the authorityof a judgment, it cannot be said that restitution would in that casebe inequitable. And it supports this, that appeals from such ajudgment are nowadays allowed.”
Mr. Perera quoted Voet, bk. IV., tit. 1, cl. 26, and argued that the onlyjust grounds for restitution were fear, fraud, minority, &c., enumeratedin the clause and _ that fear meant fear caused by present or futuredanger of a substanial evil which would exclude all notion of consentand vitiate the agreement ab. initio. He argued that if the fear was ofa conditional nature, i.e., some threatened harm, this did not excludeall notion of consent and made the agreement only voidable. Hefurther quoted Voet, bk. IV., tit. 2, cl. 11-14, to show that the fearto be adequate must be of the first kind. I cannot agree with himthat unless the fear is of the first kind we have no jurisdiction toentertain the application. For one thing there is the passage I havequoted above from bJc. IV., tit. 6, cl. 17, which states that if itcan be shown that grave prejudice had been incurred by a consentjudgment of a Court of not supreme jurisdiction, there is no reason whyrestitution should not be allowed (see also 2 Kotze, p. 341). Accordingto Voet, bk. IV., tit. 2, cl. 10, all that is required is that the fearshould be caused by something done illegally, even by a Magistrate.Supposing in this case it was proved that the Judge directly threatenedto dismiss plaintiff’s claim in 1,635 unless he signed the terms of settle-ment. Mr. Perera, further urged that surprise was not a valid groundfor an application by way of restitution. Here too I cannot agree, foraccording to the passage from Voet, bk. IV., tit. 6, cl. 17, ifgrave prejudice has been caused to the applicant through any causewhatever, there is no reason why restitution should not be allowed.This point is, as pointed out by my brother, covered by the obiter dictumof Bertram C.J. in Fernando v. Singhoris Appu', in which he mentionsany equitable ground such as mistake or surprise as being sufficient.The only difference between that case and the one before us is that herethe petitioner alleged the conduct and act of the trial Judge himself asconstituting the surprise which would entitle him to a rescission of theagreement.
I also agree with my brother that we have jurisdiction to hear anapplication of this kind by way of revision. Section 753 of the CivilProcedure Code gives very wide powers to the Supreme Court. Mr.Perera had to admit that if a Judge had recorded as a fact that he hadforced the parties to enter into a settlement in the middle of a trial thenthis Court had the power to interfere. But does it lose that power ifthe Judge omitted to insert the sentence, although there is the strongestpossible evidence to prove that the settlement was forced on the partiesby the Judge? In support of his contention Mr. Perera went so far as tourge that we had no power to set aside an order which was ex facie goodeven when it could be proved that the Judge was induced to make thatorder from corrupt motives.
■ 20 .V. I.. II. 4G9.
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KOCH A.J.-—Sabapathy v. Dunlop.
Section 90 of the Courts Ordinance gives the right to a party to anaction to have his case transferred for trial before another Judge whenthe Judge who will ordinarily try the case is personally interested in thesubject-iriatter of the action. A bribe offered to a Judge would bring himwithin section 90, for he would then be personally interested in thesubject-matter of the action. In my opinion section 90 of the CourtsOrdinance would also cover a mere personal bias as in Regina v. TheJustices of Cumberland *. Suppose this interest was discovered after thedetermination of the case and it can be proved to have so existed at thetime of the trial, has this Court no power to interfere by way of revisionunder section 753 of the Civil Procedure Code, when the application ismade in revision within a reasonable time of the discovery ? In myopinion the Supreme Court has the power. The fact that there is adearth of authorities is due to the reason given by Voet that it ispractically impossible to prove that a judgment was fraudulent in thissense (Voet, bk. V., tit. 1, cl. 58).
I also agree with my brother’s interpretation of section 408 of theCivil Procedure Code. The plaintiff having failed to convince me onhis affidavits that he signed the orders of settlement in cases Nos. 1,636and 1,637 either through surprise or pressure or fear his application inthe two cases, 1,636 and 1,637 will be dismissed with costs.
Koch A.J.—
The application preferred by the applicant, who is the plaintiff inD. C. Avissawella, Nos. 1,636 and 1,637, comes up before us by way ofrevision or in the alternative by way of restitutio in integrum with a viewto obtaining orders respectively setting aside two decrees entered in thesaid two cases. The facts are very fully and clearly set out by mybrother and it is needless for me to recapitulate them.
The first point that arises on objection by respondent’s counsel is,assuming for the purpose of argument that there were present surpriseand pressure, whether we have jurisdiction to entertain this application.
Mr. Nadarajah relied on section 408 of the Civil Procedure Code andargued that before the Court can pass a decree in accordance with theagreement or compromise that purports to be entered into between theparties, there must first be a notification of it to the Court by motion,and after this has been done the Court must next satisfy itself that theagreement or compromise was lawful. He argued that pressure orsurprise or both invalidate the agreement or compromise, and thattherefore the Court would be acting wrongly in passing a decree thereonif these facts were brought to its notice. In the present case he submittedthe Judge was himself in possession of the facts, and that in enteringthe decree the Judge acted wrongly and in contravention of that sectionand his act could therefore be reviewed by this Court.
On the other hand, it is contended by opposing counsel that the word“ lawful ” which qualifies the agreement or compromise contemplatedin the section is not entitled to the latitude of meaning that has been puton it by the applicant. Its application must be confined to what appearson the face of the compromise, that is to say, the compromise on the face
1 58 Late Times 491.
KOCH A.J.—Sabapathy v. Dunlop.
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of it must not contain an obligation contra bonos mores or one that isimpossible of performance or one that is absurd or nonsensical, andthat it is not open to the Court to travel behind the terms of the com-promise and inquire as to whether the compromise was entered into asthe result of circumstances that in law may render the agreement orcompromise voidable. If fraud was actually present, ha argued, theposition would be different as fraud vitiates a contrast ipso jure and therewould therefore be no agreement in existence which the Court can becalled upon to pass a decree on. Anything short of fraud will, generallyspeaking, render the agreement or compromise merely voidable andaccordingly such cannot justifiably lead the Court to an inquirybefore the decree is entered up.
The case of Fernando v. Singhoris Appu1 was cited to us on this pointby Mr. Nadarajah. The decision was on an application for restitutio inintegrum. The facts were that on the trial date a settlement was arrivedat between the proctor for the plaintiff on the one hand and the defendanton the other, and that the plaintiff’s proctor in doing so acted in pur-suance of the general authority conveyed by the proxy in his favour.The objection was that the proctor acted contrary to the instructionsof his client. Sir Anton Bertram C.J. was of opinion that the objectioncould not be sustained, as the proctor having apparent authority tocompromise, his client will be bound by a compromise effected under thatapparent authority. The learned Chief Justice in his judgment indealing with the position before the decree had been passed expressedhimself thus, “ To this there is only one exception—if the order, i.e., thedecree, has not in fact been drawn up, and if the Court is satisfied thereis some equitable ground such as mistake or surprise, then the Court willnot direct the order to be drawn up but will take steps to correct themistake and restore the case to the list. In the present case no doubtthe order has been drawn up, and if it could be shown that there wassome mistake or other equitable ground for relief, the Court would befree to give it. But I am unable to see in this case that there has beenestablished any such ground of relief ”.
A further point was argued in that case and the observations of theChief Justice on it are helpful. It was contended that no settlementwas in fact arrived at. The form of the learned District Judge’s notesaid, “ The following settlement is ordered ”. It was sought to put on thisnote the construction that the settlement was imposed on the partiesby the Court. The Chief Justice was of opinion that the District Judge’swords could not justly be so interpreted and that what the Judge reallymeant thereby was that a settlement being arrived at between theparties, an order was made in accordance therewith. Having come tothis decision, he dismissed the application. The learned Chief Justicehad the opportunity of clinching the matter on the ground of want ofjurisdiction if that was his opinion, but far from doing so, the tenor of hisobservations rather points to the conclusion that had the settlement beenactually imposed by the Judge in the first instance on the parties and adecree thereafter passed, the Supreme Court would have been disposedto accord relief. The principles of law affecting consent decrees are
1 20 .V. /.. /?. 4»0.
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KOCH A.J.—Sabapathy v. Dunlop.
set out in Sinnetamby v. Nallatamby Ponniahpillai v. Muttutamby’,Silva v. Fonsekaand Wilding v. Sanderson', and restitutio has beenconsidered to be an appropriate remedy.
Mr. H. V. Perera, however, in his able argument went to the extremity—and he was compelled' to go that length—of contending that howeverstrong the compulsion or pressure or undue influence exercised by aJudge on parties in forcing them to a settlement even to the degree of ascandal, so he argued, such settlement must stand if an order was oncepassed on it and cannot be reviewed by this Court. There was noprecedent or law, he maintained, in favour of a third party’s conduct—inthis case the Judge’s—being made the matter of investigation and reliefgranted. The remedy he emphasized was to be found elsewhere, that is,either by an action for damages against the Judge or by his being punisheddepartmentally. The order the Judge entered must stand and cannotby any manner of means be disturbed. In short, this Court had nojurisdiction to entertain an application based on this ground.
I cannot for a moment subscribe to this. To agree with Mr. Perera isto fetter the plenary and wide powers invested in this Court by sections39 and 40 of Ordinance No. 1 of 1889, which deals with the SupremeCourt and its powers and jurisdiction, and section 753 of the Civil Pro-cedure Code which defines the powers of this Court in revision.
I quite admit that the Court passing the decree on a compromise isrestrained to a certain extent in satisfying itself as to the lawfulness ofthe compromise. For instance, it cannot go into the question of thefairness of the compromise (20 Col. 612), or whether the terms are one-sided and extremely favourable to one party only (22 Bom. 238), thereason being that circumstances such as these have nothing to do withthe legality of the agreement or compromise, but it would be anothermatter where the actual validity of such an agreement or compromise wasquestioned.-
It is true that according to the law of England an agreement taintedwith fraud (which involves surprise) or duress (which embraces pressure)or undue influence (which chiefly applies to cases where fiduciary re-lations exist) is rendered not ipso jure void but only voidable—Chitty onContracts, 18 ed. (1930), 797, 802, 809, &c.; but according to Roman-Dutch law by which we are governed, if fraud occasioned the contract,the contract .was ipso jure void—Voet, bk IV., tit. 3, s. 3. In thecase of duress, i:e., compulsion under fear (laesio) or violence (vis) adistinction seems to have been drawn by Voet. If by duress was meantthe exercise of absolute force against a person clearly unwilling, all notionof consent is excluded and the so-called contract is no contract at all,but if the force was of a conditional nature, e.g., threatened harm, theopinion held is that the person does consent as he elects the lesser of twoevils and chooses to do the thing required of him, in which case consentis not wanting and the contract is not ipso jure void but voidable (Voet,bk. IV., tit. 2, ss. 1 and 2).
’ 23 S. L. R. 447.
* (1897) 2 Ch. 534.
1 7 N. L. R. 139.
1 1 Times L. R. 232.
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Qrotius does not seem to differentiate between fraud and fear, and inthe “ Select Theses ” by Van der Keessel on Grotius’ Introduction to DutchJurisprudence it is stated in Art. DCCCLXXVII at page 296 that trans-actions are null and void as have been contracted in fraud (dolus) orfear (laesio).
Vander Linden (Henry’s Trans.) in chapter XIV., section 2, setsout that contracts are invalid and not binding when consent is extortedby undue influence or fear or by deceit.
Van Leeuwen in his Commentaries (Kotze’s Trans.) on pages 6 and Tin the note, speaking of agreements occasioned by fear or force, declaresas follows :—
“ How can we say a person does a voluntary act where the ratiosufficiens has not been left to his judgment but to that of the personwho has compelled him? He who by fear or violence obtains theconsent of another cannot acquire any right through such wrongrtherefore promises so made expire of themselyes ”.
Maasdorp (1907) in bk. III., chap. 4, p. 64, sets forth that fraudforms the very cause and groundwork of a contract whenever one of theparties has by the employment of fraud been induced to enter into acontract and but for such fraud would not have done so. Such a contractis ipso jure null and void and does not even require restitutio in integrum,but in respect of contracts extorted through fear, force, or violence theseare not actually ipso jure null and void but are invalidated for want offree consent and restitution will be granted to,set them aside (at page 68).
It will thus be seen that the safer opinion is that if fear or violencedoes not actually render a contract ipso jure void as in the case of fraudrthese elements very nearly do so, so much so that I feel that a Judgewould be justified in giving a liberal interpretation to the word “ lawful,rin section 408 of the Civil Procedure Code and in refusing to record thesettlement or compromise or agreement, if he was satisfied that the samehad been the outcome of fear or violence.
The next point is whether it makes a difference that the fear or surprisecomplained of was occasioned by a third party and not by the othercontracting party. There seems to be very little doubt on this point.In Halsbury’s Laws of England (1st ed.), vol. VII., s. 738, he says that acontract may be avoided on the ground of undue influence exercisedby a third person provided the other party was aware ht the time whenthe contract was entered into that such undue influence was exercised.The principle‘is the same whether it be fear, pressure, or violence.
In the matter before us it is common ground that whatever trans-pired to occasion the pressure or surprise did happen in Court on oneand the same occasion and in the presence of parties, so that if thecircumstances did actuate fear or surprise in the applicant they werefacts known to the respondent immediately before or at the time thecompromise was signed by the parties thereto. The circumstancethat a presiding Judge was the third party can make no difference.The principle remains, and that is that relief will be granted to theaggrieved party if the facts and circumstances on which that relief wasclaimed were known to the other party at the time material.
37/12
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The words “shall be notified to the Court” in section 408 must begiven some significance and this would appear to be that the discussion ofterms should be a matter left entirely to the parties, and when agreementand finality have been reached, it is then only that the Court should beapprised of the compromise. The participation of„ the Court in thediscussion of the terms would appear to be deprecated.
It was strenuously argued to us by Mr. Perera that conduct on thepart of the Judge as is complained of in this case cannot be listened to bythis Court and his order revised as such conduct cannot be construed as anerror in fact or in law. Now, whatever the view may be as to what a Judgesays or does outside the precincts of the Court regarding a cause that islisted and comes up before him, whether for instance at his club or at aplace of recreation, I am firmly of opinion that the position is differentwhen his words and his acts have been expressed and committed in hisjudicial capacity while functioning as a tribunal on a Bench, and whenthe action in respect of which he has so acted is in his charge and underhis control.
I put it to respondent’s counsel that had the Judge recorded his utter-ances and acts, what then? He immediately sought to draw a differencebetween what formed a part of the record and what did not. I regret-that I am unable to appreciate the suggested distinction. To do so is toplace a premium on the perverseness of a Judge, for he can do manifest. injustice to a party in a case before him by not recording his acts, andthus prevent the Court from interfering and remedying a miscarriage ofjustice. This Court has, when occasion demanded it, been prepared topermit an aggrieved party to supplement a record on a material pointby affidavit or other means of proof, in case the recording Judge hadwrongly failed to note the facts.
I do not however wish it to be understood that I am in sympathy withthe argument that a Judge can say and do what he pleases in regardto a case that comes up before him for adjudication so long as such actsare committed by him when he is not actually functioning. There aregrounds on which a Judge may be recused—among them private andpersonal animosity between Judge and party, malice, corruption, bribery,a direct expression of an opinion adverse or hostile to one of the partiesin regard to the action in which the plea of recusation is made, &c. Thisplea can be taken before litis contestatio, and, in some cases such as maliceor corruption, may be brought in before a Court having jurisdiction toreview (Nathan, vol. IV., ss. .1993-1995).
I am therefore of opinion that it is within our jurisdiction to takecognizance of and inquire into such complaints.
The^next point is whether the applicant has chosen his rightful legalremedy. The application is set up by way of restitutio in integrum or inthe alternative by revision.
Voet in bk. TV., tit. 2, s. 1, says that the first ground for restitutio inintegrum is fear, and in title 3, section 3, in dealing with fraud lays downthat if this was the occasion of the contract, the contract was ipso jurevoid so that restitution was not necessary, implying thereby that if fraud
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merely rendered the contract voidable, restitutio would lie. This position isclarified by him in Book TV., title 1, section 26, where he says that justgrounds for restitution are fear, fraud, error, &c.
In the Select Theses on Grotius, at'page 296 it is laid down that althoughfear or fraud vitiates a contract ipso jure, it is usual for greater securityto apply for restitutio in integrum, a statement that is borne out to theletter by Voet in hk. IV., tit. 1, s. 20, where he says that restitutio isnowadays for the sake of “xtra caution sought against transaction whichare ipso jure null and void.
Van Leeuwen in his Commentaries in vol. II (2nd ed.), p. 338, referringto obligations, says that where fraud, bad faith or impropriety exists,the debitor will have his remedy against it by- restitution and will berestored, upon request to the supreme authority, to his former position.
The powers of this Court to act in revision are set out in section 40 ofthe Courts Ordinance, No. 1 of 1889, and section 753 of our Civil ProcedureCode. Under section 40 of the Courts Ordinance this Court can “ revise,correct, or modify any judgment or decree or order between and asregards the parties, or give directions to the Court below, or order a newtrial or further hearing upon such terms as the Supreme Court shallthink fit ”. Under section 753 of the Civil Procedure Code the SupremeCourt may call for and examine the record of any case, whether tried orpending trial, for the purpose of satisfying itself as to the legality orpropriety of any judgment or order passed therein or as to the regularityof the proceedings of such Court, and may upon revision make anyorder which it may have made had the case been brought before it indue course of appeal. The appellate jurisdiction of this Court is extendedby section 39 of the Courts Ordinance to the correction of all errors in factor in law of the inferior Courts.
In Ranasinghe and Henry Bonser C.J., being of opinion that noappeal lay from an order in a claim inquiry, dismissed the appeal, butfinding that the order was wrong ex facie, he quashed the order in theexercise of revisionary power vested in the Supreme Court.
The same Judge during the hearing of an appeal in the matter of theInsolvency of Kayman Thornhill’ discovered that the proceedings wereconducted in a most perfunctory manner, and that there were a number ofirregularities appearing in the record. He dismissed the appeal on theground on which it was preferred and ordered that notice should be givento the parties that the case would be brought up in revision. In dealingwith the matter when it was duly up before him he said, “ There is nodoubt whatever that this Court has the power of revising the proceedingsof all inferior courts, and that it should have such a jurisdiction is mostnecessary. The object at which this Court aims in exercising its powerof revision is the due administration of justice”. Withers J. entirelyconcurred.
Dalton J. in the case of Kannangara v. Silva’, referring to the revisionarypowers of this Court, said that “ the power given by section 40 of 'the-
1 1 N. L. it. 303.12 N. L. R. 105.
3 {1933) 13 Cey. Law Rec. 10 at p. 14.
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Courts Ordinance and by section 753 of the Civil Procedure Code is verywide, and there is no hard and fast rule governing the exercise of thatpower
Garvin J. in the very recent case of Pieris v. Silva1, although he feltthat it was by no means clear that the correct procedure was not to appealto this Court, observed that it seemed to him that there were instancesin which this Court had interfered with orders of the nature of thatbefore them. He accordingly acting in revision set aside the order of theDistrict Court.
Nathan in vol. IV., s. 1997, lays down that it is the duty of a Judge indeciding cases to act in accordance with the law. This must be obviouslyso, and if a Judge contravenes the law or acts improperly, there canbe no doubt that this Court can exercise its powers by way of revisionand grant relief to the party aggrieved in appropriate cases, andparticularly so when the party concerned has no right of appeal as inthis case.
I am of opinion therefore that it is the duty of the Court before passinga decree under section 408 of the Civil Procedure Code to satisfy itselfas to the legality of the agreement contemplated In that section, wherethat legality is questioned on grounds such as fraud, fear, mistake,surprise, &c., and if not satisfied, should refuse to enter an order, but ifthe Judge wrongly does pass a decree, this Court has jurisdiction toentertain an application to have that decree, set aside or altered ormodified according to circumstances both by virtue of its power to grantrestitution as well as to act by way of revision, and the fact that theequitable ground upon which relief is sought is directed against the Judgewho passed the decree will not alter the position.
Finally, there remains the question whether the incidents of August 14,1934, material to this application, and which preceded the signing of thesettlement, are sufficient to warrant our holding that the compromiserecorded was either void or avoided by the alleged conduct of the learnedJudge, or that by reason of the said conduct the decree came to beimproperly passed.
I entirely agree with my brother for the reasons stated by him that weare not satisfied that the applicant appended his signature to the memo-randum of settlement as the result of coercion or pressure brought tobear on him by the presiding Judge, and that in doing so the applicantacted under, fear. The affidavit of Mr. Dunlop traverses the moreimportant allegations of the applicant on this point and is definite thatno pressure whatsoever was exercised by the Judge, but apart from thisit would appear from the averments of the applicant himself and thoseof his Proctor and others present that the applicant was represented bycounsel, who after discussion' as to the terms of the settlement was in-favour of the final terms set out in the memorandum being accepted.He himself desired the insertion of; a paragraph on the express wish ofhis client that the settlement was agreed to as his client did not bring theaction with a view to enrich himself but to vindicate his honour andreputation, and advised his client that it would be best to agree to the' (1034) 12 Ceylon Times Law Rep., p. 2.
DRTEBERG J.—The King v. E. F. C. Ludowyke.129
compromise under the persuasion that “ he should not displease the JudgeI am satisfied that—though possibily with reluctance—the applicant didin law willingly sign the settlement in question actuated perhaps byconsiderations of tact and policy.
This case conspicuously manifests the danger of Judges participatingin the discussion of terms of settlement and taking too active a part inseeking to bring about a compromise. The terms of settlement shouldbe left entirely to the parties and their legal advisers who know best, orelse there always will remain the possibility of remarks or observationscoming from the Judge in the course of the discussion being misunder-stood and wrong interpretations put thereon.
I think the application should be dismissed with costs.
Application refused.